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Home My WebLink AboutEWH, LLC ( Peter Harbes)1000-120-3-11.14 (f/Wa 1000-120-3-p/o 11.12) Baseline Documentation Premises: 5645 Aldrich Lane Mattituck, New York 34.5 acres Development Rights Easement EWH LIMITED LIABILITY COMPANY to TOWN OF SOUTHOLD Deed dated March 10, 2006 Recorded April 12, 2006 Suffolk County Clerk - Liber D00012445, Page 087 SCTM #: Premises: 1000-120-3-11.14 (f/k/a 1000-120-3-p/o 11.12) 5645 Aldrich Lane Hamlet: Mattituck Purchase Price: Funding: $1,897,500.00 (34.5 buildable acres $55,000/acre) CPF Land Bank (2% funds) and NYS Ag & Markets Grant ($1,125,385.00) CPF Project Plan: Yes Total Parcel Acreage: Development Rights: 39.35 acres 34.5 easement acres Reserved Area: 4.85 acres Zoned: A-C Existing Improvements: In March 2006 - "David Rose Perennials" signs, hooped greenhouses; office/ag production building; parking lot; split-rail fencing VALUATION WITH DEVELOPMENT RIGHTS A. DESCRIPTION 1. LAND The subject is a parcel of land having an area of 35.4± acres. It is part of a larger parcel which has an area of 39.4± acres. We have been instructed to exclude a 4.0± acre section located in the central portion of the property, which includes the existing improvements. We have not been furnished a survey depicting the actual dimensions of the subject area. We have however, been furnished rough sketches and dimensions of the excluded areas. The dimensions of the overall property, of which the subject is a portion of, is described as follows: The property has an irregular but usable shape (flag shaped) with an easterly border running in a southerly direction from the northeasterly corner of the property along the westerly side of Aldrich Lane a distance of 200±'; the easterly border then continues in a westerly direction a distance of 532±', thence in a southerly direction a distance of 1,601 ±'; the southerly border runs in a westerly direction a distance of 909±'; the westerly border runs in a northerly direction a distance of 3,943±'; the northerly border runs in an easterly direction a distance of 1,523±' to the northeasterly corner of the property (or the beginning point of this description). _GIVEN A. DESCRIPTION (CONTINUED) 1. LAND fCONTINUED) Utilities (electric and telephone) are available along Aldrich Lane which is a two way, two lane, publicly maintained macadam paved road. Public water is not available in the subject area. In the addenda to this report, we have included a copy of the Suffolk County Tax Map which shows the entire property of which the subject of this appraisal is a portion. The property has a generally level topography and is mostly cleared. It is situated at or near grade with the abutting road and is vacant. Land use surrounding the subject is primarily vacant, or improved residential properties. 2. IMPROVEMENTS The land is predominately vacant with the exception of some greenhouses. B. PRESENT USE AND OCCUPANCY The subjectis presently vacantland (with some greenhouses)in useforagricultural purposes. .GIVEN P R 0 P E R T Y V I S U A L S CAPTAIN KIDE ESTATES MAT ITU 1190 AURE 11-952 947 BOXES ON~ Location Map ] 7'~ Tax Map Location ~ A~C R-80 A?C R--80 R--80 Zoning Map ] 2 0 0 5 P H O T O S I I I I I I I 1 1 ! 1 1 ! November 2005 photos ~GIVEN I I I ! I I I 1 I 1 I I I SU~ECTPHOTOGIP~APHS November 2005 photos ~GIVEN ~ E N V I R O N M E N T A L S U M M A R Y Phase I Environmental Site Assessment 5645 Aldrich Lane 1.0 SUMMARY The subject property has been inspected and reviewed independently by Nelson, Pope & Voorhis, LLC in order determine if potential environmental or public health concerns are present. This report is intended to identify Recognized Environmental Conditions (as defined in ASTM Standards on Environmental Site Assessments for Commercial Real Estate and the Target Protocol) on the subject property based on the four (4) basic components of a Full Phase I Environmental Site Assessment (ESA): records review, site reconnaissance, interviews and evaluation and reporting. The subject property lies in the Hamlet of Mattituck, Town of Southold, County of Suffolk, New York. The overall property is a 39.3-acre parcel of agricultural land, a portion of which is occupied by a nursery. This report addresses approximately 34.5 acres presently occupied by the nursery. The subject property is located at 5645 Aldrich Lane, approximately 1,831 feet south of Sound Avenue. The L-shaped property has approximately 150 feet of frontage along Aldrich Lane and widens at the interior of the site. The property is more particularly described as Suffolk County Tax Map # 1000-120-3-11.12. The subject property is utilized as farmland and a nursery. A dirt road that fronts on Aldrich Lane provides access to the farm and nursery. Farmland occupies the northern portion and the nursery occupies the southern portion of the subject property. The stalks of last year's crops cover the farm field. Unused, metal irrigation pipes were observed along the southern edge of the farm field. A landscaped berm separates the agricultural portion of the property from the nursery. A row of long greenhouses are located adjacent to the landscaped berm. At the time of the site reconnaissance, the ground was being prepared for additional greenhouses. Open plant storage areas and a large greenhouse are located on the southern poffion of the property. The surface of the ground in the open plant storage area is covered with landscape fabric. Trailers, piping and plastic containers were observed in the vicinity of the western property boundary. A small area of woods was observed at the southwest comer of the property. No odors, staining or stressed vegetation were observed on the property. No Sanborn map coverage was available for the subject property or nearby area. Aerial photographs from 1938, 1959, 1969, 1976, 1980, 1994, 1999, 2001 and 2004 were reviewed in order to determine if any prior uses occupied the subject property. The 1938 to 2001 aerial photographs identify the subject property as farmland. In the 2004 aerial photograph, fanning activities had ceased on the majority of the property and the area appears to have been undergoing grading. 5645 Aldrich Lane, Matfltuck Phase I ESA An extensive government records search found no potential sources of environmental degradation on the subject property. No Federal, State and County documented regulated sites were noted in the vicinity of the subject property. An active spill located within one (1.0) mile of the subject property is not expected to impact the subject property. Two (2) CLEARS study sites were identified in proximity to the site; however, none are expected to adversely impact the site. In conclusion, this assessment has revealed no evidence of a potential recognized environmental however, the following recommendation is issued: If the property is to be developed residentially in the furore, soil samples should be collected and analyzed for the presence of pesticides and metals. Page 2 of 24 ! i I I i ! i i i ! ! ! i ! FIGURE 1 LOCATION MAP Source: DeLorme Street Atlas Scale: Not to Scale 5645 Aldrich Lanel Mattituck Phase I ESA NORTH + I I I ! I ! I ! I I I I I I FIGURE 2 5645 Aldrich Lane~ Matfituck Ph%e I ESA SITE SURVEY Source: Stanley J. Isaksen, Jr., Surveyor Scale: 1" = 300' NORTH + I I I I I I FIGURE 3 LAND USE ~ 5645 Aldrich Lane, Mat~dtuck Phas~ I ESA SoUrce: NYSGIS Orthoimagery Program, 2004 Scale: 1" = 800' NORTH + ! I I I I I I I I ! I ! I I FIG~E 4 ZONING MAP I Source: Town of Southold Zoning Map Scale: 1" = 1,D00' 5645 Aldrich Lane~ Mattituek PhaSe I ESA NORTH + FIGURE 5 SOILS MAP I I ! I I I Source: Suffolk Cotmty Soil Survey Scale: 1" = 800' 5645 Aldrich Lane~ Mattituck Phase IEsA NOR'I~I + I I I I I i I I I I ! I I I FIGURE 6 TOPOG~HIC MAP Source: USGS Topographic Quadrangle, Mattituck Scale: 1" = 800' 5645 Aldrich Lane, Mattimck Phase I ESA NORT~I + I I I I I I ! I I I ! I I I FIGURE 7 5645 Aldrich Lane, Mattimck Ph~e i EsA WATER T~LE MAP 53325- .~ ~51582.N ~5333~ ~ 51589 .~ ~ / L ~'L~', ,~.,'' ¢44298 ~'~ ,[' ~ 4653~' / i L¢.ONIC BAY Source: SCDHS Water Table Contour Map, 1999 Scale: l" = 8,000' NORTH + I I I I I I I i I FIGURE 8 FRESHWATER WETLANDS MAP \ 5645 Aldrich Lane, Matfltuck Phase I ESA ~se, I ! I I I Source: NYSDEC Freshwater Wetlands Map, Mattituck Scale: t" = 1,000' NORI~t + I I I I I I I i I I I I I I FIGURE 9 WATER MAIN DISTRIBUTION MAP Source: SCWA Distribution Maps, 2005 Scale: Not to Scale 5645 Aldrich Lane~ Mattituck L AL/~EL ~ NORTH + OVERVIEW MAP - 1608761.2s Target Property ISites at elevations higher than or equal to the target property Sites at elevations lower than the target property M anufactured GasPlants National Priority List Sites ] Landfill Sites Indian Reservations BIA Oil & Gas pipelines [] 100-year flood zone ~ 500-year flood zone ] Federal Wetlands [] State Wetlands ~ept Defense Sites ~-E NAME: 5645 Aldrich Lane 5645 ADDRESS: Aldrich Lane Laurel NY 11948 I~T/LONG: 40,9807 / 72,5746 This report includes Interactive Map Layers to display and/or hide map information. The legend includes onJy those icons for the default map view, CLIENT: Nelson, Pope & Voorhis LLC CONTACT: Martssa Da Breo INQUIRY#: 1608761,2s DATE: February 07, 2006 DETAIL MAP - 1608761.2s '~r Target Property Situs at elevations higher than or equal to the target property Sites at elevations lower than the target property IManufactured GssPlants Sensitive Receptors ~ N ational Priority IJst Sitas ~ _Landfill Sites i~ept. Defense Sites ~rrE NAME: 5645 Aldrich Lane ADDRESS: 5645 Aldrich Lane Laurel NY 11948 iT/LONG: 40,9807 / 72.5746 Indian Reservations BIA ;~j' Oil & Gas pipelines [] t 00-year flood zone [] 500-year flood zene [] Federal Wetlands ] State WetJands This repod includes Interactive Map Layers to display and/or hide map information. The legend includes only those icons for the default map view. CLIENT: Nelson, Pope & Voorhis LLC CONTACT: Marissa Da Breo INQUIRY#: 1608761.2s DATE: February 07, 2006 SSURGO SOIL MAP - 1608761.2s I I I I I ! ! ! ! / 5 2 5 . 2 iTarget Property · SSURGO Soil Water 7 \ \ 5645 Aldrich Lane CLIENT: Nelson, Pope & Voorhis LLC 5645 Aldrich !..~ne CONTACT: Marissa Da Breo Laurel NY 11948 INQUIRY #: 1608761.2s 40.9807172.5746 DATE: February 07, 2006 PHYSICAL SETTING SOURCE MAP - 1608761.2s County Boundary Major Roads Contour Lines Earthquake epicenter, Richter S or greater Water Wells Public Water Supply Wells Cluster of Multipte I=ons DITE NAME: 5645 Aldrich Lane DRESS: 5645 Aldrich Lane Laurel NY 11948 ~.AT/LONG: 40.9807 / 72.5746 0 114 1t2 I ' Groundwater Flow Direction Indeterminate Groundwater Flow at Location Groundwater Flow Vsries et Location Closest Hydrogeological Dam CLIENT: Nelson, Pope & Voorhis LLC CONTACT: Marlssa Da Breo INQUIRY#: 1608761.2s DATE: February 07, 2006 A P P R A I S A L R E S O L U T I O N LAND PRESERVATION COMMITTEE MEETING Minutes of Regular Meeting held Tuesday, September 6, 2005 Members Present: Members Absent: Also present: Ray Blum, Chairman Ray Huntington John Sepenoski (7:12 p.m.) Craig Arm Fred Lee Michelle Zaloom, Eric Keil Melissa Spiro, Land Preservation Coordinator Melanie Doroski, Land Preservation Secretary Bill Edwards, Town Board Liaison Tim Caufield, Peconic Land Trust Vice President (7:18 p.m.) PETER HARBES PROPERTY (EWH Limited Liability Co) SCTM #: 1000-120-3-11.12 Location: 5645 Aldrich Lane, Mattituck Total Acreage: 39.40 acres PDR Acreage: +35.3 Zoned: A-C FWet: 3.37 acres CPF: Yes Reviewed status. This property is an operating greenhouse/nursery. Melissa Spiro met with landowner several times while owner undergoing site plan approval for ag structure with the Planning Department. Site plan approval has now been granted. Landowner's original intent was to create some residential lots but he has now decided to explore the option to sell his development rights to the Town without doing subdivision. Landowner has applied to County for PDR and the County commissioned an appraisal on this property and made an offer to the landowner; however, he would rather work with the Town rather than the County. The Town received a grant from NYS and this property is eligible for grant. He has presented a new plan to Melissa Spiro in which no residential lots would be created, and he would request a reserve area of approximately 4 acres surrounding the existing office/nursery operations building. Future greenhouses may be added to those already existing on the properly and would be located within the development rights easement. If acceptable, landowner would like to ctose as soon as possible. LPC members looked favorably upon the project. MOTION made by Ray Blum, seconded by Craig Arm, to direct Melissa Spiro to commission an appraisal, or contact the Suffolk County Division of Real Estate for the purpose of obtaining information from their appraisal, and updating same. Motion carried 5/0. P U B L I C H E A R I N G ELIZABETH NEVILLE TOWN CLERK REGISTRAR OF VITAL STATISTICS MARRIAGE OFFICER RECORDS MANAGEMENT OFFICER FREEDOM OF INFORMATION OFFICER Town Hall, 53095 Main Road PO Box 1179 Southold, NY 11971 Fax (631) 765-6145 Telephone: (631) 765 - 1800 southoldtown.northfork.net RESOLUTION # 2006-205 Resolution ID: 1588 Meeting: 02/14/06 07:30 PM Department: Land Preservation Category: Misc. Public Hearing THIS IS TO CERTIFY THAT THE FOLLOWING RESOLUTION NO. 2006-205 WAS ADOPTED AT THE REGULAR MEETING OF THE SOUTHOLD TOWN BOARD ON FEBRUARY 14, 2006: RESOLVED that pursuant to the provisions of Chapter 25 (Agricultural Lands) and Chapter 6 (2% Community Preservation Fund) of the Town Code, the Town Board of the Town of Sonthold hereby sets Tuesday, February 28~ 2006, at 5:00 p.m., Southold Town Hall, 53095 Main Road, Southold, New York as the time and place for a public hearing for the purchase of a development rights easement on a portion of the property owned by EWH, LLC (Peter Harbes and Rita Harbes) Said property is identified as part of SCTM #1000-120-3-11.12. The address is 5645 Aldrich Lane, Mattituck, New York. The property is located on the westerly side of Aldrich Lane, approximately 1,831 feet southerly from the intersection of Sound Avenue and Aldrich Lane in Mattituck in thc A-C zoning district. The proposed acquisition is for a development rights easement of approximately 34.5 acres on thc 39.35 acre parcel. The exact area of the purchase is subject to a Town provided survey acceptable to the Land Preservation Committee. The purchase price is $55,000 (fifty-five thousand dollars) per buildable acre. The Town is eligible for an awarded grant from the New York State Department of Agriculture for partial purchase of this property and part of the purchase price may be reimbursed from that agency. The property is listed on the Town's Community Preservation Project Plan as property that should be preserved due to its agricultural value; and FURTHER NOTICE is hereby given that a more detailed description of the above mentioned parcel of land is on file in Land Preservation Department, Southold Town Hall Annex, 54375 Route 25, Southold, New York, and may be examined by any interested person during business hours. Elizabeth A. Neville Southold Town Clerk LEGAL NOTICE NOTICE OF PUBLIC HEARING NOTICE IS HEREBY GIVEN that pursuant to the provisions of Chapter 25 (Agricultural Lands) and Chapter 6 (2% Community Preservation Fund) of the Town Code, the Town Board of the Town of Southold hereby sets Tuesda¥~ February 28~ 2006~ at 5:00 p.m. Southold Town Hall~ 53095 Main Road~ Southold~ New York as the time and place for a public hearing for the purchase of a development rights easement on a portion of the property owned by EWH~ LLC (Peter Harbes and Rita Harbes) Said property is identified as part of SCTM #1000-120-3- 11.12. The address is 5645 Aldrich Lane, Mattituck, New York. The property is located on the westerly side of Aldrich Lane, approximately 1,831 feet southerly f~om the intersection of Sound Avenue and Aldrich Lane in Mattituck in the A-C zoning district. The proposed acquisition is for a development rights easement of approximately 34.5 acres on the 39.35 acre parcel. The exact area of the purchase is subject to a Town provided survey acceptable to the Land Preservation Committee. The purchase price is $55,000 (fifty-five thousand dollars) per buildable acre. The Town is eligible for an awarded grant from the New York State Department of Agriculture for partial purchase of this property and part of the purchase price maybe reimbursed from that agency. The property is listed on the Town's Community Preservation Project Plan as property that should be preserved due to its agricultural value; and FURTHER NOTICE is hereby given that a more detailed description of the above mentioned parcel of land is on file in Land Preservation Department, Southold Town Hall Annex, 54375 Route 25, Southold, New York, and may be examined by any interested person during business hours. Dated: February 14, 2006 BY ORDER OF THE TOWN BOARD OF THE TOWN OF SOUTHOLD Elizabeth Neville Town Clerk PLEASE PUBLISH ON FEBRUARY 23~ 2006~ AND FORWARD ONE (1) AFFIDAVIT OF PUBLICATION TO ELIZABETH NEVILLE, TOWN CLERK, TOWN HALL, PO BOX 1179, SOUTHOLD, NY 11971. Copies to the following: The Suffolk Times Town Board Members Town Attorney Land Preservation Town Clerk's Bulletin Board SOUTHOLD TOWN BOARD PUBLIC HEARING February 28, 2006 5:00 PM COUNCILMAN WICKHAM: NOTICE IS HEREBY GIVEN that pursuant to the provisions of Chapter 25 (Agricultural Lands) and Chapter 6 (2% Community Preservation Fund) of the Town Code, the Town Board of the Town of Southold hereby sets Tuesday~ February 28~ 2006~ at 5:00 p.m. Southold Town Hall~ 53095 Main Road~ Southold~ New York as the time and place for a public hearing for the purchase of a development rights easement on a portion of the propert3,.owned by EWH~ LLC {Peter Harbes and Rita Harbes) Said property is identified as part of SCTM #1000-120-3-11.12. The address is 5645 Aldrich Lane, Mattituck, New York. The property is located on the westerly side of Aldrich Lane, approximately 1,831 feet southerly from the intersection of Sound Avenue and Aldrich Lane in Mattituck in the A- C zoning district. The proposed acquisition is for a development rights easement of approximately 34.5 acres on the 39.35 acre parcel. The exact area of the purchase is subject to a Town provided survey acceptable to the Land Preservation Committee. The purchase price is $55,000 (fifty-five thousand dollars) per buildable acre. The Town is eligible for an awarded grant from the New York State Department of Agriculture for partial purchase of this property and part of the purchase price may be reimbursed from that agency. The property is listed on the Town's Community Preservation Project Plan as property that should be preserved due to its agricultural value; and FURTHER NOTICE is hereby given that a more detailed description of the above mentioned parcel of land is on file in Land Preservation Department, Southold Town Hall Annex, 54375 Route 25, Southold, New York, and may be examined by any interested person during business hours. I have a note that that this has been posted on the Town Clerk's bulletin board outside, it has appeared as a legal in our local newspaper and I have beibre me a memo dated February 27th from Mark Terry regarding the consistency with our LWRP and the final sentence is based upon the information provided on the LWRP consistency assessment form, 'as well as records available to me, it is my recommendation that the proposed action is consistent with the policy standards and therefore is consistent with the LWRP' and those are the only communications we have on this one. SUPERVISOR RUSSELL: Would anybody like to address the Town Board on purchase of the development rights of the Harbes fame? JOAN EGAN: Joan Egan, East Marion. The only thing, I am all for it being kept agriculture. The Town wants to purchase it for their own. I have always, always worried that the Town is acquiring too much in their name and I don't think it is written in indelible ink that they can't do something else with it or sell it at another time. Isn't that so? SUPERVISOR RUSSELL: No, it is written in very delible ink. The fact that once you cleanse the property from its development rights by deed and by every other document available, you cannot, the family retains the fee ownership to the underlying title of the farm and they can farm it for as long as, for generations hopefully to come but no, there can't be a reintroduction of building fights on that land. MS. EGAN: It can't change? Once it will remain agriculture? SUPERVISOR RUSSELL: In perpetuity. MS. EGAN: Good. Thank you. SUPERVISOR RUSSELL: Anybody like to comment? Melissa? MELISSA SPIRO, LAND PRESERVATION COORDiNATOR: Melissa Spiro, Land Preservation Coordinator. As noted, this hearing is for the Town to purchase a developments rights easement on over 34 acres on a 39 acre farm. The farm is located off Aldrich Lane and it borders on Riverhead Town on the west side. The east side of Aldrich Lane starts a preservation that we have been calling the Laurel Lake area, within which there is over 500 acres that have been preserved already. The Harbes family members own active farmland to the north of this parcel and also on the north side of Sound Avenue, which is further to the north 0f this parcel. Peter Harbes recently moved his perennial nursery to this property, he went through the site plan process and has constructed an agricultural building and an access way to that agricultural-business area that will be left out of the easement. When Peter first thought about offering a developments rights easement to the Town, he proposed creating several residential lots in conjunction with the development rights easement. After thinking about it for some time, Peter decided that this wasn't really the right place to construct houses. He didn't want to see houses on his farmland and he decided to proceed with including all but five acres within the development rights easement. The development rights easement itself includes over 87% of the property. Purchase price, as mentioned, is $55,000 an acre, which totals just under $1,900,000. The property is on an awarded state grant and we expect to receive $1,200,000 towards this purchase back from the state. The property is within the Town's special groundwater, it is on our Community Preservation Plan, it is active farmland. All good reasons to preserve this farm. I am happy to have had the opportunity to work with another member of the Harbes farm. We worked with Ed Harbes a few years ago and I thank him and his fainily for offering the development rights on this property. Both the Committee and I recommend that we proceed with the resolution to purchase this development rights easement on this piece of farmland. And it is expected because the survey is already done for this propcrty, that we will be in a position to close probably in the next few weeks on this and we will add it to list of preserved farms. Thanks. SUPERVISOR RUSSELL: Thanks. Would anybody like to comment on this? (No response) Any Town Board members like to speak on this issue? (No response) Move to close the hearing? Elizabeth A. Neville Southold Town Clerk S E R E S 0 L U T I 0 N ELIZABETH NEVILLE TOWN CLERK REGISTRAR OF VITAL STATISTICS MARRIAGE OFFICER RECORDS MANAGEMENT OFFICER FREEDOM OF INFORMATION OFFICER Town Hall, 53095 Main Road PO Box 1179 Southold, NY 11971 Fax (631) 765-6145 Telephone: (631) 765 - 1800 southoldtown.nortlffork.net RESOLUTION # 2006-247 Resolution ID: 1619 Meeting: 02/28/06 04:30 PM Department: Land Preservation Category: Seqra THIS IS TO CERTIFY THAT THE FOLLOWING RESOLUTION NO. 2006-247 WAS ADOPTED AT THE REGULAR MEETING OF THE SOUTHOLD TOWN BOARD ON FEBRUARY 28, 2006: WHEREAS, the Town Board of the Town of Southold wishes to purchase a development rights easement on a certain parcel of property owned EWH, LLC (Peter Harbes) pursuant to the provisions of Chapter 6 and Chapter 25 of the Code of thc Town of Southold. Said property is identified as part of SCTM #1000-120~3-11.12. The address is 5645 Aldrich Lane, Mattituck, New York, and is located on the westerly side of Aldrich Lane, approximately 1,831 feet southerly from thc intersection of Sound Avenue and Aldrich Lane in Mattituck in the A-C zoning district. The proposed acquisition is for a development rights easement of approximately 34.5 acres (subject to survey) on the 39.35 acre parcel. The exact area of the development rights easement is subject to a Town-provided survey acceptable to thc Land Preservation Committee. The purchase price for thc easement is $55,000 (fifty-five thousand dollars) per buildable acre. The property is eligible for an awarded grant from the New York State Department of Agriculture for partial purchase of this property and part of the purchase price may be reimbursed from that agency; now, therefore, be it RESOLVED by the Town Board of the Town of Southold that this action be classified as an Unlisted Action pursuant to the SEQRA Rules and Regulations, 6NYCRR 617.1 et. Seq.; be it further RESOLVED by the Town Board of the Town of Southold that the Town of Southold is the only involved agency pursuant to SEQRA Rules and Regulations; be it further RESOLVED by the Town Board of the Town of Southold that the Short Environmental Form prepared for this project is accepted and attached hereto; and, be it further RESOLVED that the Town Board of the Town of Southold hereby finds no significant impact on the environment and declares a negative declaration pursuant to SEQRA Rules and Regulations for this action. Elizabeth A. Neville Southold Town Clerk Page 2 617.20 Appendix C State Environmental Quality Review SHORT ENVgRONHENTAL ASSESSHENT FORH For UNLZSTED AC1/ONS Only PART Z-PRO.1ECT ZNFORt4AT/ON (To be completed by Applicant OR Project) Page 1. of 2 1. APPLTCANT/SPONSOR: So.thold Town Board i 2. PROJECT NAH~i~.~ ~ ~ ,%~ 3' PRO3ECT LOCAT/ON: ' 4. PRECISE LOCATION: (Skreet address and road intersection% prominent landmarks, ere, or provide map) 5. ES PROPOSED ACT/ON: ~ Hew [] Expansion [] Hodificaflon 6. DESCRIBE PROJECT BRIEFLY.' 7. AMOUNT_OF LAND AFFECTED: INITALLY '~.¢~ acres ULTIMATELY ._~ acres 8, IN~LL PROPOSED ACTION COHPLY WITH EX/STING ZONING OR OTHER EX~S'r'[NG LAND USE RESTRICI~ONS? ~ Yes [] No /FNo, descT/be bdeffy g. WHAT IS PRESENT LAND USE ZN VJC/NETY OF PRO3ECTT [] Residential ~ Commercial ~ Industrial '~ Agriculture Park/Forest/Open space Other 10. DOES ACTION ENVOLVE A PERMI-r APPROVAL, OR FUNDZNG, NOW OR ULT~HATELY FROH ANY OTHER GOVERNMENTAL AGENCY (FEDERAL~ STATE OR LOCAL)? 11. DOES ANY ASPECT OF THE ACT[ON HAVE A CURRENTLY VALID PERMIT OR APPROVAL? r~ Yes ~' No /£,v~$, ~~st agency~$J and perm/~/app~ova/$ 1.2. AS RESULT OF PROPOSED ACTION WILL EX~STTNG PERMIT/APPROVAL REQUIRE MOD~FICATJ[ON? CERTIFY THAT THE INFORMATION PROVIDED ABOVE IS TRUE TO THE BEST OF MY KNOWLEDGE iSignature ,~ ~ I If the action is in the Coastal Area, and you are a state agency, complete the Coastal Assessment Form before proceeding with this assessment PART n*-ENV~RONHENTAL ASSESSMENT (To be completed by Agency) Page 2 of 2 A. DOES AC'I'~ON EXCEED ANY TYPE ! THRESHOLD Y.N 6 NYCRR, PART 617.47 [] Yes~ No ~f ye~ coordina~ the rev/ew proce.~ and use the full EAF B. WJ[LL AC'I'JON RECEIVE COORDTNATED REVIEW A~ PROVIDED FOR UNLZS'IED AC'FJONS IR 6 NYCRR~ PART 617.67 [] Yesj~ No ]f no, a negatlYe dedarat/on may be Suspended by another/nvolved agency C. COULD ACTION RESULT ZN ANY ADVEREE EFFECTS ASS][OCJATED WTI'H THE FOLLOWING: (Answers may be handwritten, if legible) C).. Existing air quality, surfaco or groundwater quality or quantity, noise levels, existing traffic patterns selid waste production or disposal, potential for erosion, drainage or flooding problem? Explain briefly: C2. Aesthetic, agdcuKural, archaeological, historic or other natural or cultural resources or community or neighborhood character~ Explain briefly: C3. Vegetation or fauna fishes shellfish, or wildlifo species significant habitats or threatened or endangered spedes? Explain bdefly' Cl. A community's existing plans es geals as offidally adopted, or change in use or intensity of Use of land or other natural resources? Expl~bdefly: C5. Growth, subsequent development, or related activities likely to be induced by the proposed action? flxplain briefly: C6. ~j~g term, short term, cumulative, or other effects not identified in CJ.-CS? Explain briefly: C7. Other impacts (including changes in use of either quantity of type of energy)? Explain briefly: D. WILL THE PROJECT HAVE AN TMPACT ON THE ENVIRONMENTAL CHARACTERIcs THAT CAUSED THE ESTABLlrSHMENT OF A CEA? E, [S THERE~ OR IlS THERE LTKELY TO BE, CONTROVERSY RELATED TO POTENTLAL ADVERSE ENVIRONMENTAL IMPACTS? PART Z~[- DETERMINAI'[ON OF SZGNZF~CANCE (To be completed by Agency) INSTRUCTIONS: For each adverse effect identified above, detertnine whether it is substantial, large, or otherwise significant. Each effect should be assessed in connection with i~s (a) setting (i.e, urban or rural); probability of occurring; (c) duration; (dO irreversibility; (e) geographic scope; and (f) rc~gnitude. If necossa~, add attachments or reference supporting materials. Ensure that explanations contain suffident detail to show that all relevant adverse impacts have been identified and adequately addressed, if question D of part [! was checked yes, the determination and significance must evaluate the potential impact of the proposed action on the environmental characteristics of the CEA. Check this box if you have identified one or more potentially large or significant adverse impacts, which may occur. Then proceed direddy to the FULL ENV][RONHETNAL ASSESSHENT FORH and/or prepare a positive declaration. Check this box if you have determined, based on the information and analysis above and any supporting documentation, that the proposed action WILL NOT result in any significant adverse envirOnmental impacts AND provide on attachments as necessa~/, the reasons supporting this determination; ,~ ~ Name of Loan Agent/ , Print of type Name/of~Responsibie~i3fficer in.Le~d Agency Title of Re~4;lpnsible Officer Signaly~r~of Responsible Officer in Lead Agency Signa'ture of prepare(if diffe~nt from-of responsible officer) P U R C H A S E R E S O L U T I O N ELIZABETH NEVILLE TOWN CLERK REGISTRAR OF VITAL STATISTICS MARRIAGE OFFICER RECORDS MANAGEMENT OFFICER FREEDOM OF INFORMATION OFFICER Town Hall, 53095 Main Road PO Box 1179 Southold, NY 11971 Fax (631 ) 765-6145 Telephone: (631) 765 - 1800 southoldtown.northfork.net RESOLUTION # 2006-258 Resolution ID: 1620 Meeting: 02/28/06 04:30 PM Department: Land Preservation Category: Contracts, Lease & Agreements THIS IS TO CERTIFY THAT THE FOLLOWING RESOLUTION NO. 2006-258 WAS ADOPTED AT THE REGULAR MEETING OF THE SOUTHOLD TOWN BOARD ON FEBRUARY 28, 2006: WHEREAS, the Town Board of the Town of Southold held a public hearing on the question of the purchase of a development rights easement on a certain parcel of property owned by EWH, LLC (Peter Harbes), on the 28th day of February, 2006, pursuant to the provisions of Chapter 25 (Agricultural Lands Preservation) and Chapter 6 (Community Preservation Fund) of the Town Code, at which time all interested parties were given the opporttmity to be heard; and WItEREAS, said property is identified as part of SCTM #1000-120-3-11.12. The address is 5645 Aldrich Lane, Mattituck, New York, and is located on the westerly side of Aldrich Lane, approximately 1,831 feet southerly from the intersection of Sound Avenue and Aldrich Lane in Mattituck in the A-C zoning district; and WHEREAS, the development rights easement comprises approximately 34.5 acres (subject to survey) on the 39.35 acre parcel. The exact area of the development rights easement is subject to a Town-provided survey acceptable to the Land Preservation Conunittee; and WHEREAS, the purchase price for the easement is $55,000 (fifty-five thousand dollars) per buildable acre; and WHEREAS, the Town is eligible for an awarded grant from the New York State Department of Agriculture for partial purchase of this property and part of the purchase price may be reimbursed from that agency; and WHEREAS, the property is listed on the Town's Community Preservation Project Plan as property that should be preserved due to its agricultural value; and WltEREAS, the property is in the vicinity of other lands preserved by the Town and/or the County; and WItEREAS, the purchase of the development rights on this property is in conformance with the provisions of Chapter 6 (2% Community Preservation Fund) and Chapter 25 (Agricultural Lands Preservation) of the Town Code, and WHEREAS, the proposed action has been reviewed pursuant to Chapter 95 of the Town Code and Local Waterfront Revitalization Program (LWRP) and the LWRP Coordinator has determined that this action is consistent with the LWRP; and WHEREAS, the Town Board deems it in the best public interest that the Town of Southold purchase the development rights on this agricultural land; now, therefore, be it RESOLVED that the Town Board of the Town of Southold hereby elects to purchase a development rights easement on agricultural land owned by EWIt~ LLC (Peter Harbes)~ pursuant to the provisions of Chapter 6 and Chapter 25 of the Code of the Town of Southold. Said property is identified as part of SCTM #1000-120-3-11.12. The address is 5645 Aldrich Lanes Mattituck, New York, and is located on the westerly side of Aldrich Lane approximately 1,831 feet southerly of the intersection of Sound Avenue and Aldrich Lane in Mattituck in the A-C zoning district. The development rights easement comprises approximately 34.5 acres (subject to survey) on the 39.35 acre parcel. The exact area of the development rights easement is subject to a Town-provided survey acceptable to the Land Preservation Committee. The purchase price for the easement is $55,000 (fifty-five thousand dollars) per buildable acre. The Town is eligible for an awarded grant from the New York State Department of Agriculture for partial purchase of this property and part of the purchase price may be reimbursed from that agency. Elizabeth A. Neville Southold Town Clerk Page 2 PLANNING BOARD MEMBERS JERILYN B. WOODHOUSE Chair KENNETH L. EDWARDS MARTIN H. SIDOR GEORGE D. SOLOMON JOSEPH L. TOWNSEND M~HJNG ADDRESS: P.O. Box 1179 Southold, NY 11971 OFI~ICE LOCATION: Town Hall Annex 54375 State Route 25 (cor. Main Rd. & Youngs Ave.) Southold, NY Telephone: 631 765-1938 Fax: 631 765-3136 PLANNING BOARD OFFICE TOWN OF SOUTHOLD To: Supervisor Scott Russell Members of the Town Board From: Mark Terry, Senior Environmental Planner LWRP Coordinator Date: February 27, 2006 Re: Purchase of a Development Rights Easement Peter Harbes property (EWH,LLC) SCTM #1000-120-3-11.12 Town Board of the Town of Southold elects to purchase a development rights easement on agricultural land owned by EWH, LLC (Peter Harbes and Rita Harbes), pursuant to the provisions of Chapter 6 and Chapter 25 of the Code of the Town of Southold. The development rights easement comprises approximately 34.5 acres (subject to survey) on the 39.35 acre parcel. The proposed action has been reviewed to Chapter 95, Waterfront Consistency Review of the Town of Southold Town Code and the Local Waterfront Revitalization Program (LWRP) Policy Standards. Based upon the information provided on the LWRP Consistency Assessment Form submitted to this department, as well as the records available to me, it is my recommendation that the proposed action is CONSISTENT with the Policy Standards and therefore is CONSISTENT with the LWRP. Please contact me at (631) 765-1938 if you have any questions regarding the above. Cc: Melissa Spiro, Land Preservation Coordinator FEB 2 8 2006 LAND C L 0 S I N G S T A T E M E N T CLOSING STATEMENT EWH, LLC (Peter Harbes) to TOWN OF SOUTHOLD Development Rights Easement - 34.5 acres 34.5 buildable acres @ $55,000/acre Premises: 5645 Aldrich Lane, Mattituck Total Parcel Acreage - 39.35 acres SCTM #1000-120-3-p/o 11.12 Closing held on Friday, March 10, 2006 at 1:00 p.m., Land Preservation Department, Southold Town Hall Annex Purchase Price of $1,897,500.00 disbursed as follows: Payable to Peter Harbes Check ~85246 (3/10/06) $ 1,897,500.00 Expenses of Closing: Appraisal Payable to Given Associates, LLC Check #83625 (10/25/05) $ 1,900.00 Survey Payable to Stanley J. Isaksen, Jr. Check #85146 (2/28/06) $ 950.00 Environmental Report Payable to Nelson, Pope & Voorhis, LLC Check #86072 (5/9/06) $ 1,300.00 Title Report Payable to Stewart Title Insurance Company Check #85247 (3/10/06) Fee Insurance $ 7,728.00 Recording Easement $ 250.00 Certified Easement $ 50.00 Recording C&R's $ 165.00 Recording 2 Subordination $ 170.00 Agreements 8,363.00* *actual check issued = $8,429.00 overpayment - (title company to refund Town = $66.00) Title Closer Attendance Fee Payable to Livia Cooper Check #85245 (3/10/06) $ 100.00 Those present at Closing: Scoff A. Russell Lisa Clare Kombrink, Esq. Peter Harbes Ellen Harbes Patricia C. Moore, Esq Livia Cooper Melissa Spiro Melanie Doroski Southold Town Supervisor Attorney for Town of Southold Seller Seller's wife Attorney for Seller Title Company Closer Land Preservation Coordinator Land Preservation Administrative Asst ~.'081,1~051,~.L,~: r~. OOOO0[, 0,' VENDOR 007943 PETER HARBES 03/10/2006 CHECK 85246 H3 .8660.2.600.100 P.Q.~ T]qVOTC~ TBR258 031006 D~CRTDTTON AM©T~T DEV RTS-34.5 GA 1,897,500.00 TOTAL 1,897,500.00 TOWN OF SOUTHOLD · SOUTHOLD, NY 11971-0959 -GIVEN ASSOCIATES GIVEN ASSOCIATES, LLC P.O. Box 5305 · 548 Route 111 · Hauppauge, NY. 11788-0306 (631) 360-3474 FAX 360-3622 October 11, 2005 Melissa Spire, Land Preservation Coordinator Town of Southold Dept. Of Land Preservation Town Hall Annex 54375 State Route 25 P.O. Box 1179 Southold, New York 11971 Appraisal of Real Property of EWH, LLC Located Westerly Side of Aldrich Lane, Laurel, NY S.C.T.M. #1000-120-3-11.12 OCT 18 2005 DEPT OF lAND PRESERVATION File# 2005311 $1,900.00 GL108S 20 TOWN OF SOUTHOLD Disburs Inquiry by Vendor Name View 1 ** Actual Hi .............. Detail--GL100N .............. Vendor.. 007416 GIVEN ASSOCIATES LL : W-10252005-079 Line: 165 Formula: 0 : Y=Select - JE Date Trx. Date Fund Account ............................. Begi 4/12/2005 4/12/2005 H3 .600 4/12/2005 4/26/2005 4/26/2005 4/26/2005 s/10/2005 5/lO/2OO5 7/05/2005 4/12/2005 4/26/2005 4/26/2005 4/26/2005 5/10/2005 5/10/2005 7/05/2005 9/13/2005 9/13/2005 10/25/2005 10/25/2005 ~ 10/25/2005 10/25/2005 ,, 11/10/2005 11/10/2005 .,,~]~1/10/2005 11/10/2005 .1~1/10/2005 11/10/2005 .. 12/20/2005 12/20/2005 : Account.. H3 .600 : : Acct Desc ACCOUNTS PAYABLE : : Trx Date ..... 10/25/2005 SDT 10/24/05 : : Trx Amount... 1,900.00 : H3 .600 : Description.. UPDATE APPRAISAL-HARBES : H3 .600 : Vendor Code.. 007416 : H3 .600 : Vendor Name.. GIVEN ASSOCIATES LLC : H3 .600 : Alt Vnd.. : H3 .600 : CHECK ........ 83625 SCNB : H3 .600 : Invoice Code. 2005311 : H3 .600 : VOUCHER ...... : H3 .600 : P.O. Code .... 14359 : H3 .600 : Project Code. : H3 .600 : Final Payment P Liquid. : A .600 : Type of 1099. M BOX. 07 Addl. : A .600 : Fixed Asset.. Y : A .600 : Date Released 10/25/2005 : H3 .600 : Date Cleared. 10/31/2005 : : F3=Exit F12=Cancel : ......................... Use Acti F2=Shift Up F3=Exit F10=Prev View Select Record(s) or Use Action Code STANLEY J. SAKSEN, PROFESSIONAL LAND SURVEYOR 1'.O. Box 294 Topagraphic Title New Suffolk, N.y. 11956 Surveys Surveys Telephone & Fax 631-734-5835 Ms, Melissa Spire Land Preservation Unit Town of Sotahold P.O. Box 1179 Southold, N.Y. 11971 Dear Ms. SpJro: Enclosed is a bill for professional services concerning a propelty survey to include location and mapping of areas to the acquired by the Town of Southold for the purchase of development rigJlts. The map, as prepared by me, is umler the name E. W. H. Limited Liability Company, and is under the management and operational control of David Rose Perennials, ~s operated by Peter Harbes. As you are aware, I have prepared a prope~y survey for him prior to the interest bf the Town to purchase development rights. Fee for defining the limits of the reserved areas as agreed to by Mr. Harbes and yourself, to include field work and mapping of this information: Please remit...$950.00 at this time, CC: file 03CI254PG'- I Very ?U~y yom, GL108S 20 TOWN OF SOUTHOLD View 1 ** Actual Hi Vendor.. 009660 ISAKSEN,JR.,L.S./ST Y=Select JE Date Trx. Date Fund Account ............................. Begi ,. 5/18/2004 5/18/2004 H3 .600 8/24/2004 8/24/2004 H3 .600 ~ 2/28/2006 2/28/2006 H3 .600 Disburs Inquiry by Vendor Name ............. DetailT-GL100N ............. ~ W-02282006-074 Lane: 115 Formula: 6 : Account.. H3 .600 Acct Desc ACCOUNTS PAYABLE Trx Date ..... 2/28/2006 SDT 2/27/06 Trx Amount... 950.00 Description.. EWH-LLC (HARBES) SURVEY Vendor Code.. 009660 Vendor Name.. ISAKSEN, JR.,L.S./STANLEY Alt Vnd.. CHECK ........ 85146 SCNB Invoice Code. 03C1254RF-1 VOUCHER ...... P.O. Code .... 14899 Project Code. Final Payment F Liquid. Type of 1099. M BOX. 07 Addl. Fixed Asset.. Y Date Released 2/28/2006 Date Cleared. F3=Exit F12=Cancel vetson, Hope & Voorhis, LLC 572 Walt Whig.man Road Phone: 631--427-5665 Melville NY 11747 Fax: 631.-427-5620 Invoice Property: 06037 Project: 5645 Aldrich Lane, Laurel Manager: McGinn, Steven VA02031 To: Town of Southold Dcm of Land Preserv Town Hall 53095 State Rt 25, PO Box 1179 Southold NY 11971 Attention: Melanie Doroski Invoice #: 4006 Invoice Date: April 21, 2006 /MAKE CHECKS PAYABLE TO NELSON POPE & VOORHIS Invoice Amount $1,300. O0 Contract Item #1: Prepare Phase I Environmental Site Assessment Work Performed: 2/7 thru 3/8/06 Contract Amount: $1,300.00 · Percent Complete: 100.00% Fee Earned: $1,300.00 Prior Fee Billings: $0.00 Current Fee Total: $1,300.00 *** Total Project Invoice Amount $1,300.00 GL108S 20 TOWN OF SOUTHOLD View i ** Actual Hi Vendor.. 014161 NELSON, POPE & VOOR Y=Select JE Date Trx. Date Fund Account ......................... Use Acti 5/lO/2005 7/05/2005 7/05/2005 8/02/2005 9/27/2005 9/27/2005 10/ll/2005 12/20/2005 1/03/2006 4/11/2006 4/11/2006 /09/2006 5/10/2005 H3 .600 7/05/2005 H3 600 7/05/2005 H3 600 8/02/2005 H3 600 9/27/2005 B 600 9/27/2005 B 600 10/11/2005 H3 600 12/20/2005 B 600 1/03/2006 H3 600 4/11/2006 B 600 4/11/2006 B 600 5/09/2006 H3 600 F2=Shift Up F3=Exit F10=Prev View CANNOT FORWARD. END OF FILE Disburs Inquiry by Vendor Nalne .............. Detail--OL100N .............. : W-05092006-756 Line: 252 Formula: 0 : : Account.. H3 .600 : :Acct Desc ACCOUNTS PAYABLE : Trx Date ..... 5/09/2006 SDT 5/04/06 : Trx Amount... 1,300.00 : Description.. PHASE 1-HARBES PROPERTY : Vendor Code.. 014161 : Vendor Name.. NELSON, POPE & VOORHIS, : Alt Vnd.. : CHECK ........ 86072 SCNB : Invoice Code. 4006 : VOUCHER ...... : P.O. Code .... 14900 : Project Code. : Final Payment F Liquid. : Type of 1099. M BOX. 07 Addl. : Fixed Asset.. Y : Date Released 5/09/2006 : Date Cleared. : F3=Exit F12=Cancel : 25 Baylis Road, Suite 201 Melville, NY 11747 631-501-9615 fax: 63%501-9624 www.st ewar ttiflem elville.co m 755 East Main Street Riverhead, NY 11901 631-727-4470 fax: 631-501-9623 NYSE: STC ESTIMA TED INVOICE TITLE NO,: ST-S~330 DATE March 8, 2006 /.~ ] APPLICANT: Town of Southold - Land Preservation CLOSING DATE: ~~ PREMISES: 5645 Aldrich Lane, Martituck, New York District: 1000 Section: 120.00 Block: 03.00 Lot: 011.012 PURCHASER/BORROWER: Town of Southold Reference: Fee Insurance $1~897,500.00 $7r728.00 Mortgage Insurance Mortgage Insurance Misc. Departmental Searches (Total) Bankruptcies - 3-Day Rescission UCC-I Search County/State / Shipping Charges ENDORSEMENTS New Survey By: A) Envmtl (8.1) (429) - $25.00 Survey Locate/lnspectYService Charge \ B) Waiver (431 ) - $25.00 Endorsements (see schedule) C) VRE (420) - $25.00 Endorsement Total: D) Residential (436) - $25.00 Survey Endorsement * E) Revolving Credit (406) - * Market Value Rider ** ~, F) Survey (402) - * RECORDING FEE(s):Deed,(s): '~: G) Alta9(401)- * ~..~('~rvfi:g~I- leo O~r(~ tI)~ ~Q~ ~'0~ LO H) Market Value Rider (408) - ** ]1/2 ff ** 10% of Straight Owner's Premium VO0~dl~rl ~[ ~' ~'t'~~, [ ~) *lO%ofStraightMortgagePremium NYS Transfer Tax (usually pa~ by seller) I NYC RPT Pecoinc Bay Tax DEPARTMENTAL FEES (per lot) Mortgage Tax - (Mortgagor) a) C/O - (Mortgagee) b) Street - Check Exchange ($25.00) c) H and B- Other Exchange d) E~R - ESCROW - To Hold e) Fire Search - - To Pa)' f) Full Residential - Escrow Service Charge ($50.00) '~ " g) Full Conunercial - TOTAL: ~,~'~ C 3 ...... Closer MUST Verify Depts. Subject to change/verification at closi~ f RECEIPTS DIRECT CHECKS: AMOUNT: SOCIAL SECURITY NUMBERS: 0VIANDATORY): STIC CI~ECKS: ' 'AMOUNT: The recording/filing fees referenced on this invoice include Stewart Titles fees for processing the subject recordings/filings VENDOR 019624 STEWART TITLE INSURANCE CO. O0000N o /lo/2oo6 CHECK 85247 FUND & ACCOUNT P.O.~ INVOICE H3 .8660.2.600.100 TBR258 H3 .8660.2.600.100 TBR258 H3 .8660.2.600.100 TBR258 H3 .8660.2.600.100 TBR258 H3 .8660.2.600.100 TBR258 ST-S-6330A ST-S-6330B ST-S-6330C ST-S-6330D ST-S-6330E DESCRIPTION AMOI~T TITLE POLICY-HARBES 7,794.00 EASEMENT REC-HARBES 250.00 EASEMENT COPY-HARBES 50.00 RECORD C&R'S-HARBES 165.00 REC SUB AGRMNTS-HARBE 170.00 TOTAL 8,429.00 TOWN OF SOUTHOLD · SOUTHOLD, NY 11971-0959 ,'Ol) C;;~l~ll' 1:0~,[,051,~,[,1: r~% O0000L, 0,' VENDOR 003574 LIVIA COOPER 03/10/2006 CHECK 85245 FUND & ACCOUNT H3 .8660.2.600.100 P.O.~ INVOICE TBR258 ST-S-6330 DRSCRIPTION TITLE CLOSER-HARBES TOTAL 100.00 100.00 TOWN OF SOUTHOLD · SOUTHOLD, NY 11971-0959 R E C O R D E D D E E D SUFFOLK COUNTY CLERK RECORDS OFFICE RECORDING PAGE Ty~e of Instrument: DEEDS/DDD Number of Pages: 22 Receipt Number = 06-0037019 TRANSFER TAX NUMBER~ 05-34561 District= 1000 Recorded= At: LIBER: PAGE: Section: Block: 120.00 03.00 EXAMINED AND CHARGED AS FOLLOWS $1,897,500.00 Received the Following Fees For Above Instrument Exempt Page/Filing $66.00 NO Handling COE $5.00 NO NYS SRCHG EA-CTY $5.00 NO EA-STATE TP-584 $5.00 NO Cert.Copies RPT $30.00 NO SCTM Transfer tax $0.00 NO Com/u. Pres Fees Paid TRANSFER TAX NUMBER: 05-34561 THIS PAGE IS A PART OF THE INSTRUMENT THIS IS NOT A BILL Judith A. Pascale County Clerk, Suffolk County 04/12/2006 02:49:42 PM D00012445 087 Lot: 011.014 Exempt $5.00 NO $15.00 NO $75.00 NO $14.30 NO $0.00 NO $0.00 NO $220.30 DEPT. OF LAND PRESERVATION Deed/Mmtgagc hlshmncnt Judith g. Rascal*, CLERK OF SUFFOLK EOUNTV L 000012445 Recording / Fili.g Sthifip,~: Reg, Copy FEES Real PlOl/erty Tax Service Agency Velificalk/n 06010732 zooo z2ooo 0300 ozzo~.4 Date I, Bask Trix 2. Adllillonal '['ax Sub Tolal O~ Spec./Add. TOT, MTG. TAX Dual Town Dual Cotlniy__ .~] Satisfncllons/I)ischalges/ll. eleases last Properly Owners Mniling Address ItECOIU) & RETUItN TO: C(~,nmunity Preservation Fund Improved TD TD Su'ffollc County Recording & Endorsement Page 'tlfislmgefom~spartord~eatlach~d ~¢ed d (onSeP¢~ (SPECIFY T~E OF NSTRIJM~F) - 5 V 0 SI IFFOI,I~'COUNTY, NEW YORK. 130×[iS 5 'Il IRU 9 MIJSF Bli TYPED OIL PRINTED IN BI.ACIC.. INK ONLY PRIOP~ TO RECOIq)I NG OR FII. ING, DEED OF CONSERVATZON EASEMENT THIS CONSERVATION EASENIEBT.~(~'E,~^~e~r'~,nt") is granted this day of March, 2006, by EWH,UL~L~'~"~ant~r ) ~ng an address - ~ b-~~ .~om~'r~/FV~. Mattituck, New York 11952 to THE TOWN OF SOUTHOLD ("Grantee"), a New York municipal corporation having an office at 53095 Main Road, P.O. Box 1179, Southold, New York 11971. WHEREAS: A. Grantor is the owner of certain real property (the "Property") consisting of 39.35 acres located at 5645 Aldrich Lane, Laurel, in the Town of Southold, Suffolk County, New York, designated as SCTM# 1000-120-3- 11.12,a part of which (34.5 acres) is subject to this Deed of Conservation Easement and more fully described in EXHIBTT A attached hereto and shown on a survey dated August 22, 2003, and last revised March 2, 2006 prepared by Stanley Isaksen, Jr.; and B. Grantee is a municipal corporation and has the authority pursuant to Section 247 of the General Municipal Law and Article 49, Title 3 of the New York Environmental Conservation Law (the "ECL") to acquire conservation easements. C. The Property consists primarily of productive agricultural land. The Property contains 25 acres of prime soils, 3.3 acres of woodlands and wetlands and 10.7 acres of soils of statewide importance as defined by the U.S. Department of Agriculture Natural Resources Conservation Service. D. Article 14, Section 4 of the New York State Constitution states that "the policy of this state shall be to conserve and protect its natural resources and scenic beauty and encourage the development and improvement of its agricultural lands for the production of food and other agricultural products;" E. ~n Section 49-0301 of the ECL, the Legislature of the State of New York found and declared that "in order to implement the state policy of conserving, preserving and protecting its environmental assets and natural and man-made resources, the preservation of open spaces, and the preservation, development and improvement of agricultural and forest lands..., is fundamental to the maintenance, enhancement and improvement 1 of 20 of._balanced economic growth and the quality of life in all areas of the state;" F. The Property is located within Suffolk County's Agricultural District #:1, created pursuant to Article 25AA of the New York State Agriculture and Markets Law. In Section 300, it states: "It is hereby found and declared that many of the agricultural lands in New York State are in jeopardy of being lost for any agricultural purposes. When nonagricultural development extends into farm areas, competition for limited resources results...It is therefore the declared policy of the state to conserve, protect and encourage the development and improvement of its agricultural land for production of food and other agricultural products...It is the purpose of this article to provide a locally-initiated mechanism for the protection and enhancement of New York State's agricultural land as a viable segment of the local and state economies and as an economic and environmental resource of major importance;" G. Article 25-AAA, Section 321 of the Agriculture and Markets Law states that "It is hereby found and declared that agricultural lands are irreplaceable state assets. In an effort to maintain the economic viability, and the environmental and landscape preservation values associated with agriculture..." the Commissioner is authorized to administer programs to assist counties in developing agricultural and farmland protection plans and to assist both county and municipal governments in the implementation of such plans. The Commissioner gives priority to projects that will preserve viable agricultural land, are located in areas facing significant development pressure and serve as a buffer for a significant natural public resource containing important ecosystem or habitat characteristics; H. The property is located within the Town of Southold, which has adopted the Southold Town Farm and Farmland Protection Strategy, dated January, 2000. The Plan recommends that the Town continue its efforts to preserve land suitable for farming and ensure that farming remains an important part of the local economy. The Plan also recommends that the Town participate in partnership efforts with the Federal, State and CoUnty governments and related grant programs in order to use the Town's limited financial resources most effectively. I. Grantor has received independent legal and financial advice regarding this Easement to the extent that Grantor has deemed necessary. Grantor freely signs this Easement in order to accomplish its conservation purposes. NOW, THEREFORE, in consideration of the foregoing, ONE MILLION- 2 of 20 EIGHT-HUNDRED-NINETY-SEVEN THOUSAND-FIVE HUNDRED Dollars ($1,897,500.00) and the mutual covenants, terms, conditions and restrictions contained herein, the parties agree as follows: 1. Grant of Conservation Easement Grantor hereby grants and conveys to Grantee, a Conservation Easement (the "Easement"), an immediately vested interest in real property defined by Article 49, Title 3 of the ECL of the nature and character described herein, for the benefit of the general public, which Easement shall run with and bind the Property in perpetuity. Grantor will neither perform, nor knowingly allow others to perform, any act on or affecting the Property that is inconsistent with the covenants contained herein. Grantor authorizes Grantee to enforce these covenants in the manner described below. 2. Purpose It is the primary purpose of this Easement to: a) enable the Property to remain in agricultural or forestry use for current and future production of food and fiber, and livestock and livestock products, by protecting in perpetuity its agricultural and forestry values, use and utility, including its prime, statewide important and unique agricultural soils; and b) prevent any use of the Property that would significantly impair or interfere with its long- term agricultural and forestry viability. It is the secondary purpose of this Easement to conserve and protect the Property's open space resources, and their associated unique and special natural features to the extent that such protection does not conflict with the primary purpose of this Easement. 3. Implementation This Easement shall be implemented by limiting and restricting the development and use of the Property in accordance with its provisions. No use of the property shall occur and no permanent or temporary structures or other buildings or improvements shall hereafter be constructed, placed or maintained on the Property, except as specifically provided herein. The Property remains subject to all applicable local, state and federal laws and regulations. 4. Definitions As used in this Easement, the terms "Grantor" or "owner" include the original Grantor, its heirs, successors and assigns, all future owners of any 3 of 20 legal or equitable interest in all or any portion of the Property, and any party entitled to the possession or use of all or any part thereof; and the term "Grantee" includes the original Grantee(s) and its[their] successors and assigns. The term "Sound Agricultural Practices" is defined as those practices necessary for on-farm production, preparation and marketing of agricultural commodities, provided such practices are legal, necessary, do not cause bodily harm or property damage off the farm, and achieve the intended results in a reasonable and supportable way. If necessary, to determine if a practice is "sound," Grantee or Grantor may request the New York State Department of Agriculture and Markets to initiate a sound agricultural practice review pursuant to Section 308 of the New York State Agriculture and Markets Law, or any successor statute. The term "Farm Labor Housing" means structures used to house seasonal and/or full-time employees where such residences are provided by the farm landowner and/or operator, the worker is an essential employee of the farm landowner and/or operator employed in the operation of the farm and the farm worker is not a partner or owner of the farm operation. For instance, a mobile or manufactured home used as the primary residence of a farm owner is not farm labor housing. 5. Reserved Rights Retained by Grantor Notwithstanding any provisions of this Easement to the contrary, Grantor reserves all customary rights and privileges of ownership, including the right of exclusive use, possession and enjoyment of the Property, the rights to sell, lease, and devise the Property, as well as any other rights consistent with the Purpose set forth in Section 2 and not specifically prohibited or limited by this Easement. Unless otherwise specified below, nothing in this Easement shall require Grantor to take any action to restore the condition of the Property after any Act of God. Nothing in this Easement relieves Grantor of any obligation with respect to the Property or restriction on the use of the Property imposed by law. 6. Access Nothing contained in this Easement shall give or grant to the public a right to enter upon or to use the Property or any portion thereof where no such right existed in the public immediately prior to the execution of this Easement. 4 of 20 7. Right to Use Property for Rural and Agricultural Uses Grantor has the right to produce crops, livestock and livestock products and conduct farm operations as defined under Section 301 of the New York State Agriculture and Markets Law ("Agriculture and Markets Law"), or such successor law as is later promulgated, which includes but is not limited to the right to establish, reestablish, maintain, and use cultivated fields, orchards, pastures and woodlands. Said farming practices shall be carried out in accordance with Sound Agricultural Practices as defined herein. ]~n addition, Grantor has the right to distribute farm products, subject to the limitations set forth in this Easement, including Section 10 ("Construction of Buildings and Other Improvements"). 8. Right to Use the Property for Recreational Purposes Grantor retains the right to use the Property for otherwise lawful recreational uses, including, but not limited to, hunting, fishing, cross- country skiing and snowmobiling, subject to the limitations set forth in this Easement, including Section 10 ("Construction of Buildings and Other Improvements"). 9. Maintenance Should the property cease to be used for agricultural purposes for more than three (3) years, the agricultural fields containing prime, statewide important and unique soils will be mowed at least triennially or otherwise maintained in a condition which will prevent growth of woody vegetation that would interfere with future agricultural use or which might result in interference with drainage systems, or in reversion of significant portions of the Property to regulated wetland status. Similarly, during prolonged periods of disuse for agricultural purposes, artificial and natural d~ainage systems must be maintained in a functional state by the Grantor. If Grantor does not comply with this provision, Grantee shall have the right, but not the obligation, to mow such fields, at Grantee's sole expense, if it so chooses. :LO. Construction of Buildings and Other Zmprovements Grantor may undertake construction, erection, installation, removal or placement of buildings, structures, or other improvement to the Property 5 of 20 only as provided in this Easement and set forth below. :LO(a) Fences -~ Existing fences may be repaired, removed and replaced, and new fences may be built on the Property for purposes of reasonable and customary management of livestock and wildlife and to prevent trespassing on the Property. 10(b) New Agricultural Structures and Improvements - Without permission of Grantee, Grantor may construct new buildings, structures and impervious improvements including asphalt and concrete roads and parking areas on up to 5% of the Property to be used primarily for purposes related to a "Farm Operation," as defined in New York State Agriculture and Markets Law § 301 or any successor statute and for such other agricultural purposes as (i) the production, storage or sale of farm products or by-products, (ii) the storage of equipment used for agricultural production, (iii) the keeping of livestock or other animals and (iv) farm labor housing. Such new buildings, structures and impervious improvements shall not include those used for the processing and packaging of farm products. Such coverage limitations do not apply to permeable surfaces such as gravel roads and parking areas, structures that protect soil and water resources, such as manure storage areas, and structures and improvements lacking permanent foundations where the land underneath is not covered by impervious surfaces. Permission is required by Grantee for the construction of such buildings, structures and improvements that would cover more than 5% of such area. 10(c) New Farm Labor Housing - Without permission of Grantee, Grantor has the right to construct new dwellings or structures for Farm Labor Housing as defined in Paragraph 4, together with new agricultural structures and improvements permitted in Section 10(c) above, on up to 5% of the property. With advance written permission of the Grantee, pursuant to Section 18 (Permission), Grantor has the right to construct such Farm Labor Housing within the remaining Property. The land on which these structures stand shall not be subdivided. 10(d) New Recreational Structures and Improvements - Any one or more new recreational improvements proposed for the Property that exceed an aggregate footprint of 400 square feet may be located only with the advance written permission of Grantee. Under no circumstances shall athletic fields, golf courses or ranges, commercial airstrips, commercial helicopter pads or any other similar recreational improvements that interfere with the Purpose of this Easement, significantly disturb the farm soils, or otherwise adversely affect 6 of 20 agricultural and forestry uses on a continuing basis be allowed on the Property. 10(e) Utility Services and Septic Systems -- Wires, lines, pipes, cables or other facilities providing electrical, gas, water, sewer, communications, or other utility services to the improvements permitted in this Easement may be installed, maintained, repaired, removed, relocated and replaced, and Grantor may grant easements over and under the Property for such purposes. Septic or other underground sanitary systems serving the improvements permitted herein may be installed, maintained, repaired or improved. Services are limited to structures permitted on the Property pursuant to Section 18 ("Permission"). 10(f) Ancillary Improvements - Other improvements, including, but not limited to facilities for the generation and transmission of electrical power for agricultural production uses on the Property, such as windmills and detached solar arrays may be built only with the permission of Grantee, pursuant to Section 18 ("Permission"). 11. Maintenance and Improvement of Water Sources Grantor maintains the right to use, maintain, establish, construct, and improve water sources, water courses and water bodies within the Property for the uses permitted by this Easement, provided that Grantor does not significantly impair or disturb the natural course of the surface water drainage or runoff flowing over the Property. Grantor may alter the natural flow of water over the Property in order to improve drainage of agricultural soils, reduce soil erosion, provide irrigation for the Property or improve the agricultural or forest management potential of the Property, provided such alteration is consistent with Sound Agricultural Practices, the Purpose of this Easement and is carried out in accordance with applicable State and federal laws and regulations. 12. Water Rights Grantor retains and reserves the right to use any appurtenant water rights sufficient to maintain the agricultural productivity of the Property. Grantor shall not transfer, encumber, lease, sell or otherwise sever such water rights from title to the Property itself. 13. Subdivision The Property may not be further subdivided pursuant to Town Law 7 of 20 Sections 265, 276 or 277 or Section 335 of the Real Property Law, as they may be amended, or any other applicable State or local law, except as provided herein. "Subdivision" shall be limited to the division of the portion of the Property from which the development rights are acquired into no more than two farming parcels, each of which must be at least ten (:tO) acres in size. Notwithstanding this provision, the underlying fee interest may be divided by conveyance of parts thereof to heirs or next of kin by will or operation of law. 14. Forest Management Without prior written permission from Grantee, Grantor may clear forested areas for conversion to farmland, may harvest wood for on-farm use including heating or construction of buildings and improvements, and may remove trees that are fallen, dead, diseased or dangerous, so long as it is consistent with Sound Agricultural Practices. Without prior written permission from Grantee, Grantor may commercially harvest timber and other wood products and construct, maintain, remove, and repair unpaved access roads and "staging areas" (those areas where logs are temporarily stored for transport) necessary for such activities, in accordance with generally-accepted forest best management practices (as outlined in a forest management and harvest plan) that shall not result in significant degradation of soil and water resources. Such commercial timber cutting shall be carried out only in accordance with a forest management plan and harvest plan prepared by a forester who is certified by the Society of American Foresters or such successor organization as is later created, or a Cooperating Consulting Forester with the New York State Department of Environmental Conservation. In order to facilitate the monitoring and stewardship of this Conservation Easement, to ensure continuing communication between parties, Grantor shall give Grantee, its successors or assigns, written notice thereof not less than forty-five (45) days prior to the anticipated commencement of any commercial timber harvest. Such written notice shall include submission of the current forest management plan and harvest plan. :IS. Excavation and removal of Materials; Mining The excavating or filling of the Property, except as may be necessary to construct and maintain permitted structures and improvements on the Property, or in connection with necessary drainage and soil conservation 8 of 20 programs, shall be prohibited, without the prior written consent of Grantee. Mineral exploitation, and extraction by any method, surface or subsurface, is prohibited. The removal of topsoil, sand, or other materials shall not take place, nor shall the topography of the Property be changed except to construct and maintain the permitted structures and improvements on the Property and for farm operations, erosion control and soil management, without the prior written consent of Grantee. 16. Road Construction Grantor may construct roads for barnyards, farm roads, or other improvements necessary to provide access to, and parking for, permitted buildings or improvements, or to conduct other activities permitted by this Easement, provided to the greatest extent practicable, impact to the prime, statewide important and unique soils is minimized. No other portion of the Property shall be paved or otherwise covered with concrete, asphalt, or any other impervious paving material. 17. Dumping and Trash The dumping, land filling, burial, application, injection, or accumulation of any kind of garbage, trash or debris on the Property is prohibited, other than agriculturally-related waste or biodegradable material in accordance with Sound Agricultural Practices and any applicable State or federal law or regulation. However, this shall not prevent the storage of agricultural products and byproducts, temporary storage of trash or household waste in receptacles for periodic off-site disposal, and composting or re-use of biodegradable materials as permitted in Section 7 ("Right to Use Property for Agricultural Uses"), generated off the Property for use on the Property or commercial use so long as they are used and stored in accordance with Sound Agricultural Practices. Notwithstanding the foregoing, the storage and treatment of sewage associated with buildings permitted on the Property, is permitted by this Easement. Permission of Grantee Where Grantor is required to obtain Grantee's permission for a proposed action hereunder, said permission shall be requested in writing. Grantee shall grant permission unless it determines that such action would 1) violate the Purpose of this Easement, 2) impair the potential for long-term agricultural viability associated with the Property, or 3) unnecessarily impede the use of Property's prime, statewide important or unique soils. Grantee 9 of 20 shall respond in writing within forty-five (45) days of receipt of the Grantor's written request, which request shall include building plans identifying the use, footprint and total square footage of any proposed structures, and related survey information, if available. Grantee shall not be liable for damages for any failure to grant permission to Grantor. 19. Ongoing Responsibilities of Grantor and Grantee Other than as specified herein, this Easement is not intended to impose any legal or other responsibility on Grantee, or in any way to affect any obligations of Grantor as owner of the Property, including, but not limited to, the following: 19(a) Taxes -- Grantor shall be solely responsible for payment of all taxes and assessments levied against the Property. If the Grantor becomes delinquent in payment of taxes the Grantee, at its option, shall have the right to take such actions as may be necessary to protect the Grantee's interest in the Property and to assure the continued enforceability of this instrument and to recover all of its costs including reasonable attorney's fees. If, as a result of such actions, Grantee ever pays any taxes or assessments on Grantors interest in the Property, Grantor will promptly reimburse Grantee for the same. 19(b) Upkeep and Maintenance -- Grantor shall be solely responsible for the upkeep and maintenance of the Property, to the extent required by law and this Easement. Grantee shall have no obligation for the upkeep or maintenance of the Property. 19(c) Liability and Indemnification - Grantor agrees to indemnify and hold Grantee and the State of New York, Department of Agriculture and Markets harmless from any and all costs, claims or liability, including but not limited to reasonable attorneys fees arising from any personal injury, accidents, negligence or damage relating to the Property, or any claim thereof, unless due to the negligence of Grantee or its agents, in which case liability shall be apportioned accordingly, 20. Extinguishment of Development Rights Except as otherwise reserved to the Grantor in this Easement, all development rights appurtenant to the Property are hereby released, terminated and extinguished, and may not be used on or transferred to any portion of the Property as it now or hereafter may be bounded or described, or 10 of 20 to any other property adjacent or otherwise, or used for the purpose of calculating permissible lot yield of the Property or any other property. 21. Baseline Documentation By its execution of this Easement, Grantee acknowledges that the present uses of the Property are permitted by this Easement. ]:n order to evidence the present condition of the Property (including both natural and man-made features) so as to facilitate future monitoring and enforcement of this Easement, a Baseline Documentation Report, including maps, describing such condition at the date hereof, has been prepared and a copy will be kept on file with Grantee. The Report may be used by Grantee to establish that a change in the use or character of the Property has occurred, but its existence shall not preclude the use by Grantee of other evidence to establish the condition of the Property as of the date of this Easement. 22. Right of Inspection Grantee shall have the right to enter upon the Property upon forty-eight (48) hours advance notice to Grantor for the purpose of inspecting for compliance with the terms of this Easement. Such inspection shall be conducted between the hours of 9 a.m. and 7 p.m. on a weekday that is not a legal holiday recognized by the State of New York or at a date and time agreeable to the Grantee and Grantor. In the instance of a violation or suspected violation of the terms of this Easement which has caused or threatens to cause irreparable harm to any of the agricultural or other resources this Easement is designed to protect, no such advance notice is required. Representatives of the New York State Department of Agriculture and Markets shall have the same right of inspection. 23. Enforcement If Grantee determines that a violation of this Easement has occurred, Grantee shall so notify Grantor, giving Grantor thirty (30) days to cure the violation. Notwithstanding the foregoing, where Grantee in Grantee's sole discretion determines that an ongoing or threatened violation could irreversibly diminish or impair the Purpose of this Easement, Grantee may bring an action to enjoin the violation, ex parte if necessary, through temporary or permanent injunction. In addition to injunctive relief, Grantee shall be entitled to seek the following remedies in the event of a violation: 11 of 20 (a) money damages, including damages for the loss of the resources protected under the Purpose of this Easement; and (b) restoration of the Property to its condition existing prior to such violation. Said remedies shall be cumulative and shall be in addition to all remedies now or hereafter existing at law or in equity, in any case where a court finds that a violation has occurred, Grantor shall reimburse Grantee for all its expenses incurred in stopping and correcting the violation, including, but not limited to, reasonable attorneys' fees. The failure of Grantee to discover a violation or to take immediate legal action shall not bar Grantee from doing so at a later time. in any case where a court finds no violation has occurred, each party shall bear its own costs. 24. Transfer of Property Any subsequent conveyance, including, without limitation, transfer, lease or mortgage of the Property, shall be subject to this Easement, and any deed or other instrument evidencing or effecting such conveyance shall contain language substantially as follows: "This {conveyance, lease, mortgage, easement, etc.~} is subject to a Conservation Easement which runs with the land and which was granted to the Town of Southoid by instrument dated ~ , and recorded in the office of the Clerk of Suffolk County at Liber ~ at Page "Grantor shall notify Grantee in writing at least thirty (30) days before conveying the Property, or any part thereof or interest therein, to any third party. The failure to notify Grantee or to include said language in any deed or instrument shall not, however, affect the validity or applicability of this Easement to the Property or limit its enforceability in any way. 25. Amendment of Easement This Easement may be amended only with the written consent of Grantee and current Grantor and with the approval of the New York State Department of Agriculture and Markets. Any such amendment shall be consistent with the Purpose of this Easement and shall comply with the Conservation Law or any regulations promulgated thereunder. Any such amendment shall be duly recorded. 26. Alienation No property rights acquired by Grantee hereunder shall be alienated 12 of 20 except pursuant to the provisions of Chapter 25 or 59, as applicable, of the Town Code of the Town of $outhold, following a public hearing and, thereafter, ratified by a mandatory referendum by the electors of the Town of Southold. No subsequent amendment of the provisions of the Town Code shall alter the limitations placed upon the alienation of this property rights or interests which were acquired by the Town prior to any such amendment. 27. Extinguishment of Easement At the mutual request of Grantor, Grantee and New York State Department of Agriculture and Markets, a court with jurisdiction may, if it determines that conditions surrounding the Property have changed so much that it becomes impossible to fulfill the Purpose of this Easement described in Section 2 ("Purpose") herein, extinguish or modify this Easement in accordance with applicable law. Tn that case, the mere cessation of farming on the Property shall not be construed to be grounds for extinguishment of this Easement. Notwithstanding the foregoing, if condemnation by exercise of the power of eminent domain make impossible the continued use of the Property for Purpose of this Easement as described in Section 2 ("Purpose") herein, the restrictions may be extinguished by judicial proceeding. Tn either case, upon any subsequent sale, exchange or involuntary conversion by the Grantor, Grantee shall be entitled to a portion of the proceeds from any subsequent sale or other disposition of the Property, or title insurance proceeds, in accordance with Section 28 ("Proceeds") herein. 28. Proceeds The grant of this Easement gives rise to a property right, immediately vested in Grantee, which, for purposes of calculating proceeds from a sale or other disposition of the Property as contemplated under Section 27 ("Extinguishment of Easement"), shall have a value equal to a percentage of the value of the Property unencumbered by this Easement (the "Proportionate Share"). The Proportionate Share is determined by dividing the value of this Easement, calculated at the price per acre set forth in the Purchase/Sale Agreement, by the unencumbered value of the Property, calculated as of the date of the appraisal obtained by Grantee prior to execution of this easement. The Proportionate Share is 73%. The Proportionate Share shall remain constant (subject to reasonable adjustment to the extent permissible under Section 170(h) of the Tnternal Revenue Code for any improvements which may hereafter be made on the Property). 13 of 20 With regard to the portion of such Proportionate Share equal to the percentage of the purchase price of this Easement that was paid using State Farmland Protection Program Grant funds, Grantee agrees to use such portion in a manner consistent with the Purpose of this Easement. Prior to such re- use, Grantee must notify the New York State Department of Agriculture and Markets. 29. ~nterpretation This Easement shall be interpreted under the laws of the State of New York, or federal law, as appropriate. Any general rule of construction to the contrary notwithstanding, this Easement shall be liberally construed to effect the Purpose of this Easement. If any provision in this Easement is found to be ambiguous, an interpretation consistent with the Purpose of this Easement that would render the provision valid shall be favored over any interpretation that would render it invalid. 30. Successors Every provision of this Easement that applies to Grantor or Grantee shall also apply to their respective agents, heirs, executors, administrators, assigns, and other successors in interest, and shall continue as a servitude running in perpetuity with the Property. 31. Severability invalidity of any of the covenants, terms or conditions of this Easement, or any part thereof, by court order or judgment shall in no way affect the validity of any of the other provisions hereof which shall remain in full force and effect. 32. Notices Any notice required or desired to be given under this Easement shall be in writing and shall be sent by (i) personal delivery, (ii) via registered or certified mail, return receipt requested, or (iii) via Federal Express or other private courier of national reputation providing written evidence of delivery. Notice shall be deemed given upon receipt in the case of personal delivery, and upon delivery by the U.S. Postal Service or private courier. All notices shall be properly addressed as follows: (a) if to Grantee, at the address set forth above; (b) if to Grantor, at the address set forth above; (c) if to any 14 of 20 subsequent owner, at the address of the Property;(d) if to New York State Department of Agriculture and ivlarkets, 10B Airline Drive, Albany, New York 12235. Any party can change the address to which notices are to be sent to him, her or it by duly giving notice pursuant to this Section. 33. Title The Grantor covenants and represents that the Grantor is the sole owner and is seized of the Property in fee simple and has good right to grant and convey the aforesaid Easement; that the Property is free and clear of any and all mortgages not subordinated to this Easement, and that the Grantee shall have the use of and enjoyment of the benefits derived from and existing out of the aforesaid Easement. 34. Subsequent Liens on Property No provisions of this Easement should be construed as impairing the ability of Grantor to use this Property, or a portion thereof encompassing entire separately deeded parcels, as collateral for a subsequent borrowing. 3S. Subsequent Encumbrances The grant of any easements or use restrictions is prohibited, except with the permission of Grantee. 36. Grantor's Environmental Warranty Nothing in this Easement shall be construed as giving rise to any right or ability in Grantee, or the New York State Department of Agriculture and Markets to exercise physical or management control over the day-to-day operations of the Property, or any of Grantor's activities on the Property, or otherwise to become an operator with respect to the Property within the meaning of The Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended ("CERCLA") or any corresponding state and local statute or ordinance. Grantor warrants that it has no actual knowledge of a release or threatened release of hazardous substances or wastes on the Property, as such substances and wastes are defined by applicable law, and hereby 15 of 20 promises to indemnify Grantee, and New York State Department of Agriculture and Markets against, and hold Grantee and New York State Department of Agriculture and Markets harmless from, any and all loss, cost, claim (without regard to its merit), liability or expense (including reasonable attorneys' fees) arising from or with respect to any release of hazardous waste or violation of environmental laws. If at any time after the effective date of this Easement there occurs a release in, on, or about the property of any substance now or hereafter defined, listed, or otherwise classified pursuant to any federal, state, or local law, regulation, or requirement as hazardous, toxic, polluting, or otherwise contaminating to the air, water, or soil, or in any way harmful or threatening to human health or the environment, Grantor agrees to take all steps that may be required under federal, state, or local law necessary to assure its containment and remediation, including any cleanup. 37. Duration of Easement Except as expressly otherwise provided herein, this Easement shall be of perpetual duration, and no merger of title, estate or interest shall be deemed effected by any previous, contemporaneous, or subsequent deed, grant, or assignment of an interest or estate in the Property, or any portion thereof, to Grantee, it being the express intent of the parties that this Easement not be extinguished by, or merged into, any other interest or estate in the Property now or hereafter held by Grantee. 38. Entire Agreement This instrument sets forth the entire agreement of the parties with respect to the Easement and supersedes all prior discussions, negotiations, understandings and agreements relating to the Easement, all of which are merged herein. No alteration or variation of this instrument shall be valid or binding unless contained in an amendment that complies with Section 25 ("Amendment"). 39. Waiver No waiver by Grantee of any default, or breach hereunder, whether intentional or not, shall be deemed to extend to any prior or subsequent default or breach hereunder or affect in any way any rights arising by virtue of any prior or subsequent such occurrence. No waiver shall be binding unless executed in writing by Grantee. 16 of 20 40. Binding Effect The provisions of this Easement shall run with the Property in perpetuity and shall bind and be enforceable against the Grantor and all future owners and any party entitled to possess or use the Property or any portion thereof while such party is the owner or entitled to possession or use thereof. Notwithstanding the foregoing, upon any transfer of title, the transferor shall, with respect to the Property transferred cease being a Grantor or owner with respect to such Property for purposes of this Easement and shall, with respect to the Property transferred, have no further responsibility, rights or liability hereunder for acts done or conditions arising thereafter on or with respect to such Property, but the transferor shall remain liable for earlier acts and conditions done or occurring during the period of his or her ownership or conduct. 41. Captions The captions in this instrument have been inserted solely for convenience of reference and are not a part of this instrument and shall have no effect upon construction or interpretation. IN WITNESS WHEREOF, Grantor and Grantee, intending to be legally bound hereby, have hereunto set their hands on the date first above written. Grantor: EWH, L-C-C Llm~J~¢~ c~E, I, (~OYY~ ~ By: ~ PETER HARBES Grantee: TO/W~ OF SOUTHOLD By. ~ SCO'Ur A. RUSSELL, SUPE~RV[SOR State of New York) County of ss: 17 of 20 On the ]O--day~- of ~ in the year 2006 before me, the undersig[led, personally appeared PETER HARBES, personally known to me or proved to me on the basis of satisfactory evidence to be the individual (s) whose name ~ is (a~0 subscribed to the within instrument and acknowledged to me that he/sl'.c/~.;y executed the same in his/he~ capacity (ies), and that by his/heI'/15'~r signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument. Signaturc4office of individual taking acknowledgement State of New York ) County of ss: On the ~ 04~'day of AJ~IrC,/,~. in the year 2006 before me, the undersigned, personally appeared SCOTT A. RUSSELL, personally known to me or proved to me on the basis of satisfactory evidence to be the individual (~ whose name Os) is (arc) subscribed to the within instrument and acknowledged to me that he/sha~th~y executed the same in his/her~their capacity (ies), and that by his/hcr/t?.z~r signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument. Signatu[e/~ffice of individua~ taking ~tckno~led~%ment C:\Documents and SettingsL~nne\My Documenls~Anne\Town of Southold Deeds of Development Rights\EWH,LLC EASEMENT.doc 18 of 20 19 of 20 Stewart Title Insurance Company Title No: ST-S-6330 (AMENDED 03/23/2006) DEVELOPMENT P~GHTS Schedule A Description ALL that certain plot, piece or parcel of land, situate, lying and being in the Hamlet of Mattituck, Town of Southold, County of Suffolk and State of New York, bounded and described as follows: BEGINNING at a point on the westerly line Aldrich Lane at the northeasterly comer of premises described herein which said point is distant 1,830.77 feet southerly from a monument at the intersection of the south side of Sound Avenue and the westerly line of Aldrich Lane as measured along the westerly line of Aldrich Lane; RUNNING THENCE along the westerly side of Aldrich Lane South 18 degrees 25 minutes 20 seconds East 159.71 feet; THENCE along the "Reserved Area" the following courses and distances: (1) South 78 degrees 28 minutes 40 (2) South 79 degrees 34 minutes 00 (3) South 19 degrees 42 minutes 54 (4) South 69 degrees 54 minutes 23 (5) South 20 degrees 05 minutes 37 (6) South 69 degrees 54 minutes 23 (7) South 19 degrees 47 minutes 10 (8) North 69 degrees 54 minutes 23 (9) North 20 degrees 52 minutes 10 (10) North 69 degrees 57 minutes 20 (11) North 20 degrees 02 minutes 40 (12) North 69 degrees 54 minutes 23 Joseph Lebkuecher, Jr.; seconds West, 277.56 feet; seconds West, 326.86 feet; seconds East, 799.39 feet; seconds West, 757.88 feet; seconds East, 145.39 feet; seconds West, 89.77 feet; seconds East, 396.68 feet; seconds East, 96.87 feet; seconds West, 367.59 feet; seconds East, 678.25 feet; seconds West, 125.08 feet; seconds East, 120.00 feet to lands now or formerly THENCE along said lands now or formerly Joseph Lebkuecher, Jr. TOGETHER with all right, title and interest of the party of the first part, in and to the land lying in the street in front of and adjoining said premises. (1) (2) (3) (4) (5) (6) South 20 degrees 02 minutes 40 seconds East, 798.35 feet to a monument; South 77 degrees 50 minutes 40 seconds West, 176.78 feet to a monument; South 76 degrees 31 minutes 10 seconds West 297.80 feet to a monument; South 77 degrees 34 minutes 20 seconds West, 130.34 feet to a monument; South 73 degrees 04 minutes 00 seconds West, (through a monument 366.18 feet to a monument; North 19 degrees 47 minutes 10 seconds West, 1,269.83 feet to a monument and lands now or formerly Big E Farms, (First Long Island Investors); THENCE North 19 degrees 45 minutes 00 seconds West, 388.21 feet to lands now or formerly Peter Harbes; THENCE North 71 degrees 31 minutes 30 seconds East along said lands now or formerly Peter Harbes, 1,523.20 feet to the westerly side of Aldrich Lane, to the point or place of BEGINNING. TOGETHER with all right, title and interest of the party of the first part, in and to the land lying in the street in front of and adjoining said premises. C O V E N A N T S R E S T R I C T I O N S DECLARATTON OF COVENANTS AND RESTRi'CT1'ONS THIS DECLARATION, made as of this Z~_.~-~day of Harch 2006, by EWH LIM1TED LIABILITY COMPANY with an address of P.O. Box 1731, Mattituck, NY 11952, hereinafter referred to as the "DECLARANT". WITNESSETH: WHEREAS, DECLARANT is the owner of certain real property designated as SCTM#1000-120-3-11.12 situate in the Town of Southold, a municipal corporation of the County of Suffolk and State of New York (the 'q-own"), and WHEREAS, the DECLARANT has agreed to sell and convey the Development Rights to the Town for part of SCTM #1000-120~3-11.12, located at 5645 Aldrich Lane, Laurel (the "Property"), further described on the attached Schedule "A" and to grant a Deed of Conservation Easement to the Town; and WHEREAS, for and in consideration of the purchase of Development Rights, the Town Board of the Town of Southold has deemed it in the best interests of the Town of Southold and the owners and prospective owners of the property that the within covenants and restrictions be imposed on a certain other part of SCTM# 1000-120-3-11.~2 and that this Declaration be recorded in the Suffolk County Clerk's Office; and WHEREAS, the DECLARANT has considered the foregoing and has determined that same will be in the interests of the DECLARANT and any subsequent owners of the property. NOW, THEREFORE, be it declared as follows: The DECLARANT, for the purpose of carrying out the intentions above expressed does hereby make known, admit, publish, covenant and agree that the area designated as the "Reserved [sic] Area" on a survey prepared by Stanley .1. Isaksen, Ir. dated August 26, 2003 and last revised March 2, 2006 and further described in Schedule "~" attached and made a part hereof shall hereafter be subject to the covenants and restrictions as herein cited, which covenants and restrictions shall run with the land and shall be binding upon DECLARANT and upon all purchasers and holders of said lot, their heirs, executors, legal representatives, distributes, successors and assigns, to wit: 1. Residential use of the Reserve Area shall be limited to farm-related housing for use by farm employees and/or farm managers and/or farm owners, in accordance with applicable provisions of the Town Code. 2. The Reserve Area shall not be subdivided in any manner that separates it from the Property encumbered by the Conservation Easement, recorded simultaneously herewith; 3. The Reserve Area shall not be subdivided into smaller reserve areas, unless each reserve area remains part of the Property encumbered by the Conservation Easement. The covenants and restrictions contained herein shall be construed to be in addition to and not in derogation or limitation upon any local, state, and federal laws, ordinances, regulations or provisions in effect at the time of execution of this Declaration, or at the time such laws, ordinances, regulations and/or provisions may hereafter be revised, amended or promulgated. The covenants and restrictions contained herein shall be enforceable by the Town of Southold, by injunctive relief or by any other remedy in equity or at law. The failure of the Town or any of its agencies to enforce this Declaration shall not be deemed to affect the validity of the Covenants and Restrictions or to impose any liability whatsoever upon the Town or any officer or employee thereof. : If any section, subsection, paragraph, clause, phrase or provision of these Covenants and Restrictions shall be adjudged illegal, unlawful, invalid or held to be unconstitutional by a Court of competent jurisdiction, the same shall not affect the validity of these Covenants and Restrictions as a whole, or any other part or provision hereof other than the part so adjudged to be illegal, unlawful, invalid, or unconstitutional. The within Declaration is made subject to the provisions of all laws required by law or by their provisions to be incorporated herein and they are deemed to be incorporated herein and made a part hereof, as though fully set forth. The within Declaration shall run with the land and shall be binding upon DECLARANT, its successors and assigns, and upon all persons or entities claiming under it, and may not be annulled, waived, changed, modified, terminated, revoked or amended by subsequent owners of the Property. IN WITNESS WHEREOF, the DECLARANT above named, has duly executed the foregoing Declaration the day and year first above written. DECLARANT: EWH, LLC By: Peter Harbes STATE OF NEW YORK) SS.: COUNTY OF SUFFOLK) On the [0 day of MARCH in the year 2006 before me, the undersigned, personally appeared Peter Harbes, personally known to me or proved to me on the basis of satisfactory evidence to be the individuals whose names are subscribed to the within instrument and acknowledged to me that they executed the same in their capacity, and that by their signature on the instrument, the individuals, or the persons upon behalf of which the individuals acted, executed the instrument, and that such individuals made such appearance before the undersigned in (town ~nd state). Notary Public C:\Documents and Settings~netMy Documents~Anne~Zoning\C&Rreservearea-drafl doc Stewart Title Insurance Company Title No: ST-S-6330 Schedule A Description (AMENDED 03/23/2006) DEVELOPMENT RIGHTS ALL that certain plot, piece or parcel of land, situate, lying and being in the Hamlet of Mattituck, Town of Southold, County of Suffolk and State of NeW York, bounded and described as follows: BEGINNING at a point on the westerly line Aldrich Lane at the northeasterly comer of premises described herein which said point is distant 1,830.77 feet southerly from a monument at the intersection of the south side of Sound Avenue and the westerly line of Aldrich Lane as measured along the westerly line of Aldrich Lane; RUNNING THENCE along the westerly side of Aldrich Lane South 18 degrees 25 minutes 20 seconds East 159.71 feet; THENCE along the "Reserved Area" the following courses and distances: (1) South 78 degrees 28 minutes 40 seconds West, 277.56 feet; (2) South 79 degrees 34 minutes 00 seconds West, 326.86 feet; (3) South 19 degrees 42 minutes 54 seconds East, 799.39 feet; (4) South 69 degrees 54 minUtes 23 seconds West, 757.88 feet; (5) South 20 degrees 05 minutes 37 seconds East, 145.39 feet; (6) South 69 degrees 54 minutes 23 seconds West, 89.77 feet; (7) South 19 degrees 47 minutes 10 seconds East, 396.68 feet; (8) North 69 degrees 54 minutes 23 seconds East, 96.87 feet; (9) North 20 degrees 52 minutes 10 seconds West, 367.59 feet; (10) North 69 degrees 57 minutes 20 seconds East, 678.25 feet; (11) North 20 degrees 02 minutes 40 seconds West, 125~08 feet; (12) North 69 degrees 54 nfinutes 23 seconds East, 120.00 feet to lands now or formerly Joseph Lebkuecher, Jr.; THENCE along said lands now or formerly Joseph Lebkuecher, Jr. TOGETHER with ail right, title and interest of the party of the first part, in and to the land lying ha the street in front 0fand adjoining said premises. (1) South 20 degrees 02 minutes 40 seconds East, 798.35 feet to a monument; (2) South 77 degrees 50 minutes 40 seconds West, 176.78 feet to a monument; (3) South 76 degrees 31 minutes 10 seconds West 297.80 feet to a monument; (4) South 77 degrees 34 minutes 20 seconds West, 130.34 feet to a monument; (5) South 73 degrees 04 minutes 00 seconds West, (through a monument 366.18 feet to a monument; (6) North 19 degrees 47 minutes 10 seconds West, 1,269.83 feet to a monument and lands now or formerly Big E Farms, (First Long Island Investors); THENCE North 19 degrees 45 minutes 00 seconds West, 388.21 feet to lands now or formerly Peter Harbes; THENCE North 71 degrees 31 minutes 30 seconds East along said lands now or formerly Peter Harbes, 1,523.20 feet to the westerly side of Aldrich Lane, to the point or place of BEGINNING. TOGETHER with all fight, title and interest of the party of the first part, in and to the land lying in the street in front of and adjoi~sng said premises. RESERVED AREA ALL that certain plot, piece or parcel of land, situate, lying and being in the Hamlet of Mattituck, Town of Southold, County of Suffolk and State of New York, bounded and described as follows: BEGINNING at a point on the westerly line Aldrich Lane at the northeasterly comer of premises described herein which said point is distant 1,990.48 feet southerly from a monument at the intersection of the south side of Sound Avenue and the westerly line of Aldrich Lane as measured along the westerly line of Aldrich Lane; TItENCE along the "Development Rights" area the following courses and distances: South 78 degrees 28 minutes 40 seconds West, 277.56 feet; South 79 degrees 34 minutes 00 seconds West, 326.86 feet; South 19 degrees 42 minutes 54 seconds East, 799.39 feet; South 69 degrees 54 minutes 23 seconds West, 757.88 feet; South 20 degrees 05 minutes 37 seconds East, 145.39 feet; South 69 degrees 54 minutes 23 seconds West, 89.77 feet; South 19 degrees 47 minutes 10 seconds East, 396.68 feet; North 69 degrees 54 minutes 23 seconds East, 96.87 feet; North 20 degrees 52 minutes 10 seconds West, 367.59 feet; North 69 degrees 57 minutes 20 seconds East, 678.25 feet; North 20 degrees 02 minutes 40 seconds West, 125.08 feet; North 69 degrees 54 minutes 23 seconds East, 120.00 feet to lands now or formerly Joseph Lebkuecher, Jr.; THENCE along said lands now or formerly Joseph Lebkuecher, Jr. North 20 degrees 02 minutes 40 seconds West, 142.29 feet to a monmnent and lands now or formerly William Nedoszytko and Barbara Rychwalski; THENCE along said lands now or formerly William Nedoszytko and Barbara Rychwalski and later along lands now or formerly Anna Corwin: North 19 degrees 43 minutes 00 seconds West 659.71 feet; North 79 degrees 34 minutes 00 seconds East 279.81 feet; North 78 degrees 28 minutes 40 seconds East 282.40 feet to the westerly side of Aldrich Lane; THENCE North 18 degrees 25 minutes 20 seconds West along the westerly side of Aldrich Lane 40.29 feet to the point or place of BEGINNING. S U B O R D I N A T I O N A G R E E M E N T S SUBORDINATION AGREEMENT (MORTGAGE) This Agreement is entered into between Bridgehampton National Bank, and its successors and assigns (the "Mortgagee"), a corporation with principal offices at 2200 Montauk Highway, Bridgehampton, whose mailing address is 2200 Montauk Highway, P.O. Box 3005, Bridgehampton, New York 11932, and EWH, LLC, c/o Peter Harbes, P.O. Box 1731, Mattituck, New York 11952 (the "Mortgagor") and the Town of Southold, a municipality in the County of Suffolk, State of New York, with its principal office located at 53095 Main Road, Southold, New York 11971 ("Town of Southold"). WHEREAS, Mortgagor, EWH Limited Liability Company is the owner of a certain piece of real property designated as SCTM# 1000-120-3-11.12 and located at 5645 Aldrich Lane, Laurel, Town of Southold, Suffolk County, New York, (the "Property"); and WHEREAS, Mortgagee is the holder of a promissory note made by Mortgagor, dated December 21, 2005, in the original principal amount of 50 " ' · ' . $ 0,000.00 (the Note ), which ~s secured by a mortgage encumbenng the Property of even date therewith, recorded in Liber 21207 page 697 on January 9, 2006, in the records of the Clerk of Suffolk County, New York (the "Mortgage"); and WHEREAS, concurrently with this Agreement, Mortgagor is conveying a Deed of Conservation Easement (the "Easement") over a portion of the Property to the Town of Southold, the area of which is more particularly described in Exhibit A attached hereto and made a part hereof; and WHEREAS, the Easement consists of tile limitations, agreements, covenants, use, restrictions, rights, terms and conditions set forth therein, intended to restrict the use of the Property as set forth in the Easement; and WHEREAS, the Easement, which would not otherwise be conveyed by Mortgagor or accepted by the Town of Southold, is being conveyed and accepted in reliance on this Agreement; NOW THEREFORE, in consideration of the above and the mutual covenants and promises contained herein, and other valuable consideration the receipt and sufficiency of which is hereby acknowledged, it is represented and agreed as follows: 1. The Mortgage is subordinated and hereafter shall be junior to the Easement to the extent necessary to permit the Town of Southold to enforce the Easement in perpetuity and to prevent any modification or extinguishment of the Easement by the exercise of any rights of the Mortgagee. 2. The priority of the Mortgage with respect to any valid claim on the part of the IViortgagee to the proceeds of any sale, condemnation proceedings or insurance, or to the leases, rents and profits of the portion of the Property that is the subject of the Easement, is not affected hereby provided, however, that if the Easement is extinguished under the circumstances described in Section 27 of the Easement, the Town of $outhold shall be entitled to compensation in accordance with the terms set forth in the Easement. 3. Mortgagee shall not be joined as a defendant in any action to enforce the Easement seeking damages, fees, or costs of any kind, and the Mortgage shall have priority over any judgment entered for any costs, fees, or damages under the Easement, unless the violation representing the grounds for the action was caused by the Mortgagee or its agents or employees. 4. If at any time in an action to enforce the Easement the Town of Southold obtains injunctive relief requiring that the Property be restored in any respect, Mortgagee shall not be held liable for any costs of restoration, regardless of who is in possession of the portion of the Property that is subject to the Easement, unless Mortgagee or its agents or employees are responsible for the condition requiring restoration. 5. In the event of the foreclosure of the Mortgage, whether by judicial decree or pursuant to a power of sale, the Easement shall not be extinguished but shall survive and continue to encumber the Property. 6. This Agreement shall be binding upon, and inure to the benefit of, the parties hereto and their respective personal representatives, heirs, successors, and assigns. 7. An endorsement has been placed upon the Note stating that it has, by this instrument, been sUbordinated to the Easement to the extent described herein. Entered this This Agreement shall be recorded immediately after the Easement. /~/~_ day of March, 2006. Mortgagee: BRIDGEHAMPTON NATIONAL BANK Mortgagor: EWH, LLC By: ~ PETER HARBES Town of Southold SC0'1-I- A. RUSSELL SCHEDIJLE OF EXHIBITS A. Legal Description of Easement area Stewart Title Insurance Company Title No: ST-S-6330 Schedule A Description (AMENDED 03/23/2006) DEVELOPMENT RIGHTS ALL that certain plot, piece or parcel of land, situate, lying and being in the Hamlet of Mattituck, Town of Southold, County of Suffolk and State of NeW York, bounded and described as follows: BEGINNING at a point on the westerly line Aldrich Lane at the northeasterly comer of premises described herein which said point is distant 1,830.77 feet squtherly from a monument at the intersection of the south side of Sound Avenue and the westerly line of Aldrich Lane as measured along the westerly line of Aldrich Lane; RUNNING THENCE along the westerly side of Aldrich Lane South 18 degrees 25 minutes 20 seconds East 159.71 feet; THENCE along the "Reserved Area" the following courses and distances: (1) South 78 degrees 28 minutes 40 seconds West, 277.56 feet; (2) South 79 degrees 34 minutes 00 seconds West, 326.86 feet; (3) South 19 degrees 42 minutes 54 seconds East, 799~39 feet; (4) South 69 degrees 54 minutes 23 seconds West, 757.88 feet; (5) South 20 degrees 05 minutes 37 seconds East, 145.39 feet; (6) South 69 degrees 54 minutes 23 seconds West, 89.77 feet; (7) South 19 degrees 47 minutes 10 seconds East, 396.68 feet; (8) North 69 degrees 54 minutes 23 seconds East, 96.87 feet; (9) North 20 degrees 52 minutes 10 seconds West, 367.59 feet; (I0) North 69 degrees 57 minutes 20 seconds East, 678.25 feet; (11) North 20 degrees 02 minutes 40 seconds West, 125.08 feet; (12) North 69 degrees 54 tab,utes 23 seconds East, 120.00 feet to lands now or formerly Joseph Lebkuecher, Jr.; THENCE along said lands now or formerly Joseph Lebkuecher, Jr. TOGETHER with all right, title afidTnterest of the party of the tn:st part, in and to the land lying in the street in front of and adjoining said premises. (1) South 20 degrees 02 minutes 40 seconds East, 798.35 feet to a monument; (2) South 77 degrees 50 minutes 40 seconds West, 176.78 feet to a monument; (3) South 76 degrees 31 minutes 10 seconds West 297.80 feet to a monument; (4) South 77 degrees 34 minutes 20 seconds West, 130.34 feet to a monument; (5) South 73 degrees 04 minutes 00 seconds West, (through a monument 366.18 feet to a monument; (6) North 19 degrees 47 minutes 10 seconds West, 1,269.83 feet to a monument and lands now or formerly Big E Farms, (First Long Island Investors); THENCE North 19 degrees 45 minutes 00 seconds West, 388.21 feet to lands now or formerly Peter Harbes; THENCE North 71 degrees 31 minutes 30 seconds East along said lands now or formerly Peter Harbes, 1,523.20 feet to the westerly side of Aldrich Lane, to the point or place of BEGINNING. TOGETHER with all fight, title and interest of the party of the first part, in and to the land lying in the street in front of and adjohting said premises. State of New York ) I Ic Onthe q dayof ./~'~..~ in the year 2006 before me, the undersigned, personally appeared NANCY MESSER, personally known to me or proved to me on the basis of satisfactory evidence to be the individual (s) whose name (s) is (are) subscribed to the within instrument and acknowledged to me that he/sl~e/tbey executed the same in his/her/tlieir capacity (les), and that by his/her/their signature(s) on the instrument, the indivklual(s), or the person upon behalf of which the individual(s) acted, executed the instrument. State of New York ) UNDA 8. OARL~ON ~ .P. ubll~, State of New No. 01~A6157178 Qualified In Suffolk County ~ommls~lon Explre~ Nov. 14, ~0_=. On the /(~'~ay of ~t~E_Z_ in the year 2006 before me, the uudersigned, personally appeared PETER HARBES, personally known to me or proved to me ou the basis of satishcto~ evidence to be the individual (~ whose name ~is ere) subscribed to the within instrument and acknowledged to me that he/s~y executed the same in bis/~' capacity ~, and that by his/her/th~' signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(~acted, executed the instrument. Signatt~re~ffice of indimduai ~aklng a~kno~vled~ne~t State of New York ) County of SS; Ou the ~_~day of NCL~ iu the year 2006 before me, the uudersigned, personally appeared SCOTT A. RUSSELL, personally lmown to lne or proved to me on the basis of satishctou evidence to be the individual ~ whose name (~ is~) subscribed to the within instrument and acknowledged to me that he/~y executed the same in hi~r capacity (~), and that by his/hcr,~' signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument. 1 ed ,ement S~gnatme/ofl~ce ofmdtwdm g g ~lD~°Ec~;~'~l~ld]icgs\Anae\ en~ Righ(s\BN B-SUBOR DINAT ON SUBORDINATION AGREEMENT (ASSIGNMENT OF LEASES AND RENTS) This Agreement is entered into between Bridgehampton National Bank, and its successors and assigns (the "Mortgagee"and/or the "Assignee"), a corporation with principal offices at 2200 Montauk Highway, Bridgehampton, whose mailing address is 2200 Montauk Highway, P.O. Box 3005, Bridgehampton, New York 11932, and EWH, LLC, c/o Peter Harbes, P.O. Box 1731, Mattituck, New York 1:[952 (the "Mortgagor" and/or the "Assignor") and the Town of Southold, a municipality in the County of Suffolk, State of New York, with its principal office located at 53095 Main Road, Southold, New York 11971 ("Towr of Southold"). WHEREAS, Mortgagor/Assignor, EWH Limited Liability Corr pany is the owner of a certain piece of real property designated as SCTM# 11.12 and located at 5645 Aldrich Lane, Laurel, Town of Southold, Suffolk County, New York, (the "Property"); and WHEREAS, Mortgagee/Assignee is the holder of a promissory note made by Mortgagor, dated December 2:1, 2005, in the original principal amount of $506,000.00 (the "Note"), which is secured by a mortgage encumbering the Property of even date therewith, recorded in Liber 21207 page 697 on January 9, 2006, in the records of the Clerk of Suffolk County, New York (the "Mortgage"); and an Assignment of Leases and Rents made by and between EWH Limited Liability Company and Bridgehampton National Bank dated 12/21/2005 and recorded 1/9/06 in Liber 12429 at page 497 and WHEREAS, concurrently with this Agreement, Mortgagor/Assignor is conveying a Deed of Conservation Easement (the "Easement") over a portion of the Property to the Town of Southold, the area of which is more particularly described in Exhibit A attached hereto and made a part hereof; and WHEREAS, the Easement consists of the limitations, agreements, covenants, use, restrictions, rights, terms and conditions set forth therein, intended to restrict the use of the Property as set forth in the Easement; and WHEREAS, the Easement, which would not otherwise be conveyed by Mortgagor/Assignor or accepted by the Town of Southold, is being conveyed and accepted in reliance on this Agreement; NOW THEREFORE, in consideration of the above and the mutual covenants and promises contained herein, and other valuable cOnsideration the receipt and sufficiency of which is hereby acknowledged, it is represented and agreed as follows: 1. The Assignment of Leases and Rents is subordinated and hereafter shall be junior to the Easement to the extent necessary to permit the Town of Southold to enforce the Easement in perpetuity and to prevent any modification or extinguishment of the Easement by the exercise of any rights of the Mortgagee/Assignee. 2. The priority of the Assignment of Leases and Rents with respect to any valid claim on the part of the Mortgagee/Assignee to the proceeds of any sale, condemnation proceedings or insurance, from the portion of the Property that is the subject of the Easement, is not affected hereby provided, however, that if the Easement is extinguished under the circumstances described in Section 27 of the Easement, the Town of Southold shall be entitled to compensation in accordance with the terms set forth in the Easement. 3. Mortgagee/Assignee shall not be joined as a defendant in any action to enforce the Easement seeking damages, fees, or costs of any kind, and the Assignment of Leases and Rents shall have priority over any judgment entered for any costs, fees, or damages under the Easement, unless the violation representing the grounds for the action was caused by the Mortgagee/Assignee or its agents or employees. 4. If at any time in an action to enforce the Easement the Town of Southold obtains injunctive relief requiring that the Property be restored in any respect, Mortgagee/Assignee shall not be held liable for any costs of restoration, regardless of who is in possession of the portion of the Property that is subject to the Easement, unless Mortgagee/Assignee or its agents or employees are responsible for the condition requiring restoration. 5. In the event of the foreclosure of the Mortgage, whether by judicial decree or pursuant to a power of sale, and/or Mortgagor's/Assignor's default under the Assignment of Leases and Rents and Mortgagee's/Assignee's exercise of its rights under said Assignment of Leases and Rents, the Easement shall not be extinguished but shall survive and continue to encumber the Property. 6. This Agreement shall be binding upon, and inure to the benefit of, the parties hereto and their respective personal representatives, heirs, successors, and assigns. 7. An endorsement has been placed upon the Note stating that it has, by this instrument, been subordinated to the Easement to the extent described herein. Entered this This Agreement shall be recorded immediately after the Easement. /~) ~ day of March, 2006. Mortgagee: BRIDGEHAMPTON NATIONAL BANK By: I]N/~I~CY M E.~./ERJ~ Assistant Vl~e-President Mortgagor: EWH, LLC By: ~ PETER HARBES Town of Southold: SCHEDULE OF EXHIBITS A. Legal Description of Easement area By: SCOTT A. RUSSELL Stewart Title Insurance Company Title No: ST-S-6330 Schedule A Description (AMENDED 03/23/2006) DEVELOPMENT RIGHTS ALL that certain plot, piece or parcel of land, situate, lying and being in the Hamlet of Mattituck, Town of Southold, County of Suffolk and State of NeW York, bounded and described as follows: BEGINNING at a point on the westerly line Aldrich Lane at the northeasterly comer of premises described herein which said point is distant 1,830.77 feet southerly from a monument at the intersection of the south side of Sound Avenue and the westerly line of Aldrich Lane as measured along the westerly line of Aldrich Lane; RUNNING TItENCE along the westerly side of Aldrich Lane South 18 degrees 25 minutes 20 seconds East 159.71 feet; THENCE along the "Reserved Area" the following courses and distances: (1) South 78 degrees 28 minutes 40 seconds West, 277.56 feet; (2) South 79 degrees 34 minutes 00 seconds West, 326.86 feet; (3) South 19 degrees 42 minutes 54 seconds East, 799.39 feet; (4) South 69 degrees 54 minUtes 23 seconds West, 757.88 feet; (5) South 20 degrees 05 minutes 37 seconds East, 145.39 feet; (6) South 69 degrees 54 minutes 23 seconds West, 89.77 feet; (7) South 19 degrees 47 minutes 10 seconds East, 396.68 feet; (8) North 69 degrees 54 minutes 23 seconds East, 96.87 feet; (9) North 20 degrees 52 minutes 10 seconds West, 367.59 feet; (10) North 69 degrees 57 minutes 20 seconds East, 678.25 feet; (11) North 20 degrees 02 minutes 40 seconds West, 125108 feet; (12) North 69 degrees 54 minutes 23 seconds East, 120.00 feet to lands now or formerly Joseph Lebkuecher, Jr.; THENCE along said lands now or formerly Joseph Lebkuecber, Jr. TOGETHER with all right, title arid interest of the par~y of the fLrst part, in and to the land lying in the slreet in fi'ont of and adjoining said premises. (1) South 20 degrees 02 minutes 40 seconds East, 798.35 feet to a monument; (2) South 77 degrees 50 minutes 40 seconds West, 176.78 feet to a monument; (3) South 76 degrees 31 minutes 10 seconds West 297.80 feet to a monument; (4) South 77 degrees 34 minutes 20 seconds West, 130.34 feet to a monument; (5) South 73 degrees 04 minutes 00 seconds West, (through a monument 366.18 feet to a monument; (6) North 19 degrees 47 minutes 10 seconds West, 1,269.83 feet to a monument and lands now or formerly Big E Farms, (First Long Island Investors); THENCE North 19 degrees 45 minutes 00 seconds West, 388.21 feet to lands now or formerly Peter Harbes; THENCE North 71 degrees 31 minutes 30 seconds East along said lands now or formerly Peter Harbes, 1,523.20 feet to the westerly side of Aldrich Lane, to the point or place of BEGINNING. TOGETHER with all hght, title and interest of the party of the first part, in and to the land lying ha the street in front of and adjoining said premises. T I T L E P 0 L I C Y ALTA OWNER'S POLICY- 10-17-92 POLICY OF TITLE INSURANCE ISSUED BY STEWART TITLE® INSURANCE COMPANY SUBJECT TO THE EXCLUSIONS FROM COVERAGE, THE EXCEPTIONS FROM COVERAGE CONTAINED IN SCHEDULE B AND THE CONDITIONS AND STIPULATIONS, STEWART TITLE INSURANCE COMPANY, a New York corporation, herein called the Company, insures, as of Date of Policy shown in Schedule A, against loss or damage, not exceeding the Amount of Insurance stated in Schedule A, sustained or incurred by the insured by mason of: 1. Title to the estate or interest described in Schedule A being vested other than as stated therein; 2. Any defect in or lien or encumbrance on the title; 3. Unmarketability of the title; 4. Lack of a right of access to and from the land. The Company will also pay the costs, attorneys' fees and expenses incurred in defense of the title, as insured, but only to the extent provided in the Conditions and Stipulations. IN WITNESS WHEREOF, Stewart Title Insurance Company has caused this policy to be signed and sealed by its duly authorized officers as of the Date of Policy shown in Schedule A. STEWART TITLE® Countersigned by: Secretary EXCLUSIONS FROM COVERAGE The following moiters ore expressly exduded ftom the coverage of this policy and the Company will not pay loss or damage, costs, altnrneys' fees or expenses which arise by reason 1. (a) Any Jew, ordinance or governmental retiulation (including but not limited to building and zoning lows, ordinances, or regulations) restriding, regulating, prohibiting or relating to (i) the occupancy, use, or enjoyment of the land; (ii) the chornder, dimensions or Iocalion of any improvement now or hereafter erected on the land; (iii) a separation in ownership or a change in the dimensions or area of the land or any parcel of which the land is or was a part; or (iv) environmental protection, al the et[eot of any violation of these Inv,.s, ordinances or governmental regulations, except to the exlent that o notice of the enforcement thereof or a notice of a deled, lien or encumbrance resulting from a vioMion or alleged violation affeding the land has been recorded in the public records at Dnte of Policy. Ch) Any govemmentnl police power not excluded by Co) above, except to the extent that a notice of the exercise thereof or a notice of a defect, lien or encumbrance resulting [rom a viufntion or alleged violalion nP[eding the lend has been recorded in lhe public records at Date of Policy. 2. Rights of eminent domain unless eotice of the exercise thereof has been recorded in the public mcolds at Date of Policy, but not excluding from coverage any taking which has occurred prior to Date of Policy which would be binding on the rights of a purchaser for value without knowledge. 3. Defer, liens, encumbrances, adverse claims or other matters: (a) created, suffered, assumed or agreed to by the insured claimant; Cb) not known to the Company, hal recorded in the public records at Date of Policy, but known to lhe insured claimant and not disclosed in writing to the Company by the insured claimant prior to the date the insured claimant became an insured under this policy; (c) resulting in no loss or damage to the insured claimant; Cd) altaching or created subsequent tn Dote of Policy; or Ce) resulting in loss nl damage which would not have been sustained ifthe insured ciaimnnl had paid value for the estate or interest insured by this policy. 4 Any claim which arises nut of the transadion vesting in the Insured the estate or interest insured by this policy, by reason of the operation of federal bankruptcy, state insolvency, or similar creditors' rights laws, that is based on: Ca) the transaction creating the estate or interest insured by thb policy being deemed a ftaudulent conveyance or ftaudulent transfer; or Ch) the transaction creating the estate or interest insured by this policy being deemed a preferential transfer except where the preferential transfer results from the failure: (i) to timely record the instrument of transfer; or (ii) of such recoldation lo impart notice to a purchaser fm vatue or a judgment or lien creditor. Pa olaf 0-8831 - 3 5 2 6 3 0 NY~01 (1C~17 92) Phone: Stewart Title Insurance Company 125 Baylis Road Suite 201 Melville New York 11747 (631) 501-9615 Fax: (631) 501-9623 Date: March 10, 2006 Title No: ST-$-6330 Melanie Doroski Melissa ,4. Spiro Town of Southold- Land Preservation 53095 Route 25 P.O. Box 1179 Southold, New York ! 197140959 RE: Borrower/Current Owner: P~'mises: Reference: Town of $outhoM 5645 AJdrich Lane Mattituck, New York In reference with the above captioned transaction, enclosed please find the followlng: Owners Title Policy NOTE: Any corrections or questions, please do not hesitate to call. ALTA OWNER'S POLICY SCHEDULE A Title No.: ST-S-6330 Date of Policy: March 10, 2006 Policy No.: 0-8831-352630 Amount of Insurance: $1,897,500.00 1. Name of Insured: Town of Southold County: Suffolk 2. The estate or interest in the land described herein and which is covered by this policy is: Development Rights 3. Title to the estate or interest in the land is vested in: The Town of Southold who acquired Grant of Development Rights Easement by virtue of a deed of conservation easement fi.om EWH, LLC and Peter Harbes, by deed dated 3/10/2006 and to be recorded in the Suffolk County Clerk's/Register's Office. 4. The land referred to in this policy is described as follows: See Schedule A Description, a~Lached hereto and made a part hereof. District: 1000 Section: 120.00 Block: 03.00 Lot: 011.012, 4612 (7/93) Page 2 STEWART TITLE INSURANCE COMPANY ALTA OWNER'S POLICY MAR 2 4 200( SCFI~DULE B TitleNo.: ST-S-6330 PolicyNo O-8831-352630 EXCEPTIONS FROM COVERAGE This policy does not insure against loss or damage (and the Company will not pay costs, attorney's fees or expenses) which arise by reason of: 1. Right-of-Way as set forth in Liber 3493 at Page 32. 2. Declaration of Covenants and Restrictions affecting "Reserre Area", dated 3/10/2006 and to be recorded in the Office of the Clerk of the County of Suffolk. 3. Policy excepts unpaid water, seWer and/or street frontage charges to date, if any. 4. Policy excepts the lien of restored taxes, plus interest and penalties, if any. 5. Policy Will except the terms and conditions of the Grant of Development Rights Easement to be executed by the Grantor(s) and the Town of Southold. Survey by Stanley Isaksen, Jr. dated August 22, 2003 and last dated March 22, 2006 shows Development Rights area and more. Survey reading as to Development Rights area only shows "50 foot drainage swale" traversing the premises, wooded area located, cleared area located, poly houses being erected located, area for "hoop houses" located. 4613 (2/93 Page 3 STEWART TITLE INSURANCE COMPANY O. Stewart Title Insurance Company Title No: ST-S-6330 Policy No.: 0-8831-352630 (AMENDED 03/23/2006) DEVELOPMENT RIGHTS Schedule A Description ALL that certain plot, piece or parcel of land, situate, lying and being in the Hamlet of Mattituck, Town of Southold, County of Suffolk and State of New York, bounded and described as follows: BEGINNING at a point on the westerly line Aldrich Lane at the northeasterly comer of premises described herein which said point is distant 1,830.77 feet southerly from a monument at the intersection of the south side of Sound Avenue and the westerly line of Aldrich Lane as measured along the westerly line of Aldrich Lane; RUNNING THENCE along the westerly side of Aldrich Lane South 18 degrees 25 minutes 20 seconds East 159.71 feet; THENCE along the "Reserved Area" the following courses and distances: (1) South 78 degrees 28 minutes 40 seconds West, 277.56 feet; (2) South 79 degrees 34 minutes 00 seconds West, 326.86 feet; (3) South 19 degrees 42 minutes 54 seconds East, 799.39 feet; (4) South 69 degrees 54 minutes 23 seconds West, 757.88 feet; (5) South 20 degrees 05 minutes 37 seconds East, 145.39 feet; (6) South 69 degrees 54 minutes 23 seconds West, 89.77 feet; (7) South 19 degrees 47 minutes 10 seconds East, 396.68 feet; (8) North 69 degrees 54 minutes 23 seconds East, 96.87 feet; (9) North 20 degrees 52 minutes 10 seconds West, 367.59 feet; (10) North 69 degrees 57 minutes 20 seconds East, 678.25 feet; (11) North 20 degrees 02 minutes 40 seconds West, 125.08 feet; (12) North 69 degrees 54 minutes 23 seconds East, 120.00 feet to lands now or formerly Joseph Lebkuecher, Jr.; THENCE along said lands now or formerly Joseph Lebkuecher, Jr. (1) South 20 degrees 02 minutes 40 seconds East, 798.35 feet to a monument; (2) South 77 degrees 50 minutes 40 seconds West, 176.78 feet to a monument; (3) (4) (5) (6) South 76 degrees 31 minutes 10 seconds West 297.80 feet to a monument; South 77 degrees 34 minutes 20 seconds West, 130.34 feet to a monument; South 73 degrees 04 minutes 00 seconds West, (through a monument 366.18 feet to a monument; North 19 degrees 47 minutes 10 seconds West, 1,269.83 feet to a monument and lands now or formerly Big E Farms, (First Long Island Investors); TItENCE North 19 degrees 45 minutes 00 seconds West, 388.21 feet to lands now or formerly Peter Harbes; THENCE North 71 degrees 31 minutes 30 seconds East along said lands now or formerly Peter Harbes, 1,523.20 feet to the westerly side of Aldrich Lane, to the point or place of BEGINNING. RESERVED AREA ALL that certain plot, piece or parcel of land, situate, lying and being in the Hamlet of Mattituck, Town of Southold, County of Suffolk and State of New York, bounded and described as follows: BEGINNING at a point on the westerly line Aldrich Lane at the northeasterly comer of premises described.herein which said point is distant 1,990.48 feet southerly from a monument at the intersection of the south side of Sound Avenue and the westerly line of Aldrich Lane as measured along the westerly line of Aldrich Lane; TFIENCE along the "Development Rights" area the following courses and distances: South 78 degrees 28 minutes 40 seconds West, 277.56 feet; South 79 degrees 34 minutes 00 seconds West, 326.86 feet; South 19 degrees 42 minutes 54 seconds East, 799.39 feet; South 69 degrees 54 minutes 23 seconds West, 757.88 feet; South 20 degrees 05 minutes 37 seconds East, 145.39 feet; South 69 degrees 54 minutes 23 seconds West, 89.77 feet; South 19 degrees 47 minutes 10 seconds East, 396.68 feet; North 69 degrees 54 minutes 23 seconds East, 96.87 feet; North 20 degrees 52 minutes 10 seconds West, 367.59 feet; North 69 degrees 57 minutes 20 seconds East, 678.25 feet; North 20 degrees 02 minutes 40 seconds West, 125.08 feet; North 69 degrees 54 minutes 23 seconds East, 120.00 feet to lands now or formerly Joseph Lebkuecher, Jr.; TItENCE along said lands now or formerly Joseph Lebkuecher, Jr. North 20 degrees 02 minutes 40 seconds West, 142.29 feet to a monument and lands now or formerly William Nedoszytko and Barbara Rychwalski; TItENCE along said lands now or formerly Willimn Nedoszytko and Barbara Rychwalski and later along lands now or formerly Anna Corwin: North 19 degrees 43 minutes 00 seconds West 659.71 feet; North 79 degrees 34 minutes 00 seconds East 279.81 feet; North 78 degrees 28 minutes 40 seconds East 282.40 feet to the westerly side of Aldrich Lane; TItENCE North 18 degrees 25 minutes 20 seconds West along the westerly side of Aldrich Lane 40.29 feet to the point or place of BEGINNING. Stewart Title Insurance Company SCl EDULE B PART II Title No.: ST-S-6330 Policy No: - In addition to the mattem set forth in Part I of this Schedule, the title to the estate or interest in the land described or referred to in Sc. hedule A is subject to the following matters, if any be shown, but the Company insures that these matters are subordinate to the lien or charge of the insured mortgage upon the estate or interest: 1. Mortgage made by EWH Limited Liability Company to The Bridgehampton National Bank 2. In the amount of amount $500,000.00 dated 12/21/2005 recorded 01/09/2006 Liber 21207 Page 697. Subject to Assignment of Leases and Rents made by and between EWH Lin:fited Liability Company and Bridgehampton National Bank, dated 12/21/2005 and recorded 01/09/2006 in Liber 12429 at Page 497; subordinated to Developmental Rights Easement by instrument in writing dated 3/10/2006 and to be recorded in the Office of the Clerk of the County of Suffolk. 4. Subordination Agreement made by and between Bridgehampton National Bank and EWH, LLC and the Town of Southold, dated 3/10/2006 and to be recorded in the Office of the Clerk of the County of Suffolk. STEWART TITLE INSURANCE COMPANY HEREIN CALLF. D TH~ COMP,ANY Title No.: ST-$-6339 STANDARD NEW YORK ENDORSEMENT (Owner's Policy) ATTACItED TO AND MADE A PART OF POLICY NUMBER 0-8831-352630 1. The following is added to tho i~suring provisions on the face page of this policy: "$. Any statutory' lien for .mrvie~. labor or maWrial furnished prior to the date h~of, and which has now gained or which may here~ fter gain priority over the estate or in terest of the i~anred as shown in $uhedule A of this policy.' 2. The following is added to Paragraph 7 of the Conditions and Stipulations of this policy: "(d) If the recording date of the insUuments ~mting tlle insured in0:rcst is later than the policy date, ~uch policy shall also cover intervening liens or enoambrances, except real e.stale rexes, assessments, water ¢llarges, and sewer rents" Nothing herein contaiuod shall be construed as extending or changing the effeclive date of the policy unle~ otherwi,.m expressly stated. This endorsemenl, when countersigned below by a validating signatory, is made a part of the policy and is subject to the Exclusions from Coverage, Schedules, Conditions and 1Stipulations therein, except as modified by the provisions hereof. Signed on March I0, 2006 STEWART TITLE Stewart Title lnsurauce Company ~s~g~,~cz Signed by: ~~,, Authorized Office or, ~ Stewart Title lnsttrance Company 125 Baylh Road Suite 201 .. ~.- Melvtlle~ New York 11747 ~ Agent No.: 327005 STANDARD NEW YORK ENDOK~EM ENT (9/ /93) FOR US E WITH ALTA OWNER'S POL1cY ( I 0/17/92) CONDITIONS AND STIPULATIONS 1. DEFINITION OF [EPJVLS. The fo[lowing terms when used in this policy meom (a) "insured": the insured named in Schedule A, and, subied' to any rights or defenses the Company would have hod against the humeri insured, those who succeed to the interest of the named insured by oporalioa of Iow as distinguished from purchase including, but not limited to, heirs, distributees, devisees, sun/ivors, personal representatives, next of kin, ar corporate or fiduciary successors. (b) "insured cloimonr': un insured claiming loss or damage. (c) "knowledge" or "known": actual knowledge, not constructive knowledge or notice which may be imputed to an insured by reason of the public records as defined in this policy or any ether records which import constructive notice of matters affecting the land. (d) "land": the land described or referred to in Schedule A, and improvements affixed thereto which by law constitute real property. The term "lnnd" does not include any properly beyond the lines of the area described or referred to in Schedule A, nor any right, title, interest, estate or easement in abutting streets, roads, avenues, alleys, tunes, ways or waterways, but nothing herein shell modify or limit the extent ta which a right of uccess to und from the land is insured by this policy. e) "mortgage": mortgage, deed of trust, trust deed, or other socurily instrument. f) "pub Jc records": records established under state statutes at Date of Policy fur the purpose of imparting constructive notice of mnttem relating to real property to purchasers for value and without knowledge. With resped Io Sedion )(a)(iv) of the Exclusions From Coverage, "public records" shall also include environmental protection liens filed in the records of lhe clerk of the United States district court fac the district in which the land is located. (g) "unmarketability of the tilJe": an alleged or apparent matter affecting the title to the laud, not excluded or excepted from coverage, which would entitle a pmchosor of the estate or interest described in Schedule A Io he released from the obligation to purchase by virtue of a conlradual condition requiring the delivery of marketable title. 2. CONTINUATION OF INSURANCE AFTER CONVEYANCE OF TITLE. The coverage of this policy shall continue in force as of Date of Policy in favor of an insured only so long as the insured retains an estate or interest in the land, or holds an indebtedness secured by a purchase money mortgage given by a purchaser from the insured, or only so long as the insured shall have liabilily by reason of covenants of warranty made by the insured in any transfer or conveyance of 'the estate or interest. This policy shall not continue in force in favor of any purchaser from the insured of either (i) au estale or interest in the land, or (ii) an indebtedness secured by a purchase money mortgage given lo the insured. 3. NOTICE OF CLAIM TO BE GIVEN BY INSU RED ClAI~NT. The insured shall notify the Company promptly in writing (i) in case of any litigation as set forth in Sediee 4Ca) below, (ii) in case knowledge shall come to an insured hereunder of any claim of litle or interest which is adverse to the title to the estate or interest, as insured, and which might cause loss or damage for which lhe Company may he liable by vidue of ~his policy, or (iii) if title to the estate or iuterest, as insured, is rejected as unmarketable. If prompt notice shall not be given to the Company, then as to the insured all liability of the Company shall terminate with regard to lhe mailer or metiers for which prompt notice is required; provided, however, that failure to notify the Company shall in no case prejudice the rights of any insured under this policy unless the Company shall be prejudiced by the failure and then only to the extent of the prejudice. 4. DEFENSE AND PROSECUTION OF ACTIONS; DUI'/OF INSURED C~I~flT TO COOPERATE. Ca) Upon written request by the insured and subject to the options contained in Section 6 of these Conditions and Stipulatiees, the Company, et its own cost and without unreasonable delay, shall provide for the defense of an insured in litigation Jn which any third party asserts a claim adverse Io the title or interest as insured, but only os to those stated causes of action alleging a defect, Jiee or encumbrance or other mai~er insured against by this policy. The Company shall hove the right to select counsel of its own choice (subject to the right of the insured to object for reasonable cause) to represent the insured as to those stated causes of adion and shall not he liable roi and will not pay the fees of any other counsel. The Company will not pay any fees, costs or expenses incurred by the insured ia the defense of those causes of action which allege mantels not insured against by this policy. Cb) The Company shall have the right, at its own cost, to institute and prosecute any action or proceeding or to do any other ad which in its opinion may be necessary or desirable to eslahrish the title to the estate or interesh as insured, or to prevent or reduce loss or damage to the insured. The Company may toke any appropriate action under the terms of this policy, whether or not it shall be liable hereunder, and shall not thereby concede liability or waive any provision of this policy. If the Company shall exelcJse it rights under this paragraph, it shall do so diligently. (c) Whenever the Company shall have brought an action or interposed o defense es required or pocmitted by the provisions of this policy, the Company may pursue any litigation to final determination by o court of competent jurisdiction and expressfy reserves the right, in its sole discretion, to appeal from any adverse judgment or order. (d) In oll cases where this policy permits or requires the Company to prosecute or provide for the defense of any action or proceeding, the insured shall secure to the Company the right to so prosecute or provide defense in the action or proceeding, and oil appeals therein, and permit the Company to use, at its option, the name of the insured for this purpose. Whenever requested by the Company, the insured, at the Company's expense, shall give the Company all reasonable aid (i) in any action or proceeding, securing evidence, obtaining witnesses, prosecuting or defending the action or proceeding, or effecting seHlement, and (ii) in any other lawful od which in the opinion of the Company may be necessary or desirable to establish the title Io lhe estate or interest as insured. If the Company is prejudiced by the failure of the insured to J~rnish the required cooperation, the Company's obligations to the insured under the policy shall terminale, including any liability or obligation to defend, prosecute, or continue uny litigation, with regard to the maitre or matters requiring such coopolation. 5. PROOF OF LOSS OR DAMAGE In addition to and after the notices required under Sedion 3 of these Conditions and Stipulations have been provided the Company, o proof of loss ac damage signed and sworn to by the insured claimant shaft be furnished to the Company within 90 days after the insured claimant shall ascertain the facts giving rise to the loss or damage. The proof of loss or damage shall describe the defect in, or lien or encumbrance on the title, ar other matter insured against by this policy which constitutes the basis of loss or damuge and shall slate, Io the extent possible, the basis af calculating the amount of the loss or damage. If the Company is prejudiced by the failure of the insured claimant to provide the required proof of loss or damage, lhe Company's obligations ta the insured under the policy shall terminate, including any liahiJily or obligation to defend, prosecute, or continue any litigation, with regard to the mailer or matters requiring such proof of loss or damage. in addition, the insured claimant may reasonably he required to submit to examination under oath by any authorized representalive of the Company and shall produce for examination, inspediee and copying, at such reasonable times and places as may he designated by any authorized representative of the Company, all records, books, ledgers, checks, correspondence and memoranda, whether bearing a date before ar after Date of Policy, which reasonably pertain to the loss or damage. Further, if requested by uny authorized representative of the Company, the insured claimant shall grant its permission, in writing, for any authorized representative of the Company to examine, inspect and copy all records, books, ledgers, checks, correspondence and memmaeda in lhe custody or control of a third party, which reeseeab[y pertain to the loss or damage. All information designated as confidential by the insured claimant provided to the Company pursuant to this Section shall not be disclosed to others unless, in the maseeahle judgment of the Company, it is necesse~ in the administration of the claim Pailure of the insured claimant to submit for examination under oath, produce other reasonably requested information or grant permission to secuce reasonably necessary information from third parties as required in this paragraph shall terminate any liability of the Company under this policy as to that claim. 6. OPTIONS TO PAY OR OTHERWISE SETTLE C!.~I~; TE~INATION OF LIABILI'IY. In case of a claim under this policy, the Company shall have the following additional options: (a) To ?ay or Tender Poymenl of the Amount of Insurance. To pay or tender payment of the amount of insurance under this policy together with auy costs, attorneys' fees and expenses incurred by the insured claimant, which were authorized by the Company, up to the time of payment or tender af payment and which the Company is obligated to pay. Upon the exercise by the Company of this option, all liability and obligations to the insured under this policy, other than to olake the payment required, shall terminate, including any hahility m obligation to defend, prosecule, or continue any litigation, and the policy shall he surrendered to the Company for cancellation. (b) To Pay or Otherwiso Settle With Parties Other than the Insured or With the Insured Claimant. (i) to pay al otherwise settle with other parties far or in the name of an insured claimant any claim insured against under this policy, together with any costs, aHmneys' fees and expenses hlcurmd by the insured claimant which were authorized by the Company up to the time of payment and which the Company is obligated to pay; or (ii) to pay or otherwise settle with the insured claimant the loss or damage provided for under this policy, together with any costs, attorneys' fees and expenses incurred by the insured claimant which were authmized by the Company up to the time of payment and which the Company is obligated to pay. ,(continued and concluded on last page of this policy) burtUl i iuri~ RrllJ b I I]'UL/I I iurib L, onrmueo (contitiued and concluded from reverse side of Policy Face) Upon the exercise by the Company of either of the options prpvided far ig paragraphs (b)(i) or (ii), the Company's obligations to the insured under this policy for the claimed loss or damage, other than the payments required to be mode, shall termiente, including any liability or obligation to defend, prosecute al continue any litigation. 7. DETERMINATION, EXTENT OE UABILIIY AND COINSURANCE. This policy is a contract of indemnity against actual monetary loss or damage sustained or incurred by the insured claimant who has suffered loss or damage by reason of matters insured against by this policy and only to the extent herein described. (o) The liability of the Company under this policy shall not exceed the leest of: (i) the Ameent of Inserunce stated in Schedule A; m, (ii) the difference belween the value of the insured estate or interest os insured and lhe value of the insured estate or interest subject to the defect, lien or encumbrnnce insured against by this policy. Ch) In the event the Amount of Insurance stated in Schedule A at the Date of Policy is less than DO percent of the value of the insured estate or interest or the fell consideration paid for the estate or interest, whichever is less, or if subsequent te the Date of Policy nn improvement is erected on the land which increases the value of the insured estate or interest by at least 20 percenl over the Amount of Insurance stated in Schedule A, then this Policy is subject to the following: (i) where no subsequent improvement has been made, as to any partial loss, the Company shall only pay the loss pro rata in the proportion that the amount of insurance at Date of Policy hears la the total value of the insured estate or interest at Date of Policy; m (ii) where e subsequent impravement has been made, as to any partial loss, the Company shall only pay the loss pro rala in the proportion that 120 percent of the Amount of Insurance stated in Schedule A bears to the sum of the Amount of Insurance stated in Schedule A and the amount expended fer the improvement. The provisions of this paragraph shall not apply to costs, attorneys' fees and expenses far which the Company is liable under this policy, and shall only apply to that portion of any loss which exceeds, in the aggregate, 10 percent of the Amount of Insurance stated in Schedule A. Cc) The Company will pay only those costs, attorney's fees end expenses incurred in accordance with Seciion 4 of these Conditions and Stipulations. 8. APPORTIONMENT. If the land described in Schedule A cansists of two er more parcels which are not used as a single site, and a loss is established affeding one er more of the parcels but not all, the loss shall be computed and settled on a pro tala basis as if the amount of insurance under this policy was divided pre rata as to the value on Date of Policy of each separate parcel to the whole, exclusive of any improvements made subsequent to Date ef Policy, unless u liability or value has otherwise been agreed upon as to each parcel by the Company and the insured al the time of the issuance of this policy and shown by an express statement or by an endorsement attached to this policy. 9. LIMITATION OF LIABILI'IY. Co) If the Company establishes the title, or removes the alleged defect, lien or encumbrance, or cures the lack of a right af access to or [TOm the land, or cures the claim of unmarketability of title, all as insured, in a Ieasenably diligenl manner by uny method, including litigation and the completion of any appeals therefrom, it shall have fully penCormed its obligations with respect to that matter und shall not be liable for aey loss or damage caused thereby. Cb) In the event of any htigation, including litigation by the Company ar with the Company's consent, the Company shall have no liabdgy for loss or damage until there has been a final determination by a court of competent jurisdiction, and disposition of all appeals therefrom, adverse to the title as insured. Cc) The Company shall ant be liable far loss er damage to any insured for liability voluntarily assumed by the insured in settling any claim or suit without the prier written consent of the Company. 10. REDUCTION OF INSURANCE; REDLICTION OR TE~INATION OF LIABILI'IY. Ail payments under this policy, except payments made for costs, attorneys' fees and expenses, shall reduce the amount of the insurance pro tonto. 11. LIABILI1? NONCUMUlaTIVE. It is expressly understood that the amount of insurance under this policy shall he reduced by any amount the Company may pay under any policy insuring a mortgage to which exception is taken in Schedule B or tn which the insured has agreed, assumed, or taken subject, or which is hereafter executed by an insured and which is e charge or lien on the estate or interest described m leferred tn in Schedule A, and the amount so paid shell be deemed a payment under this palicy to the insured owner. 12. PAYMENT OF LOSS. Ca) No payment shall be made without producing this policy for endorsement of the payment unless the policy has been lost or destroyed, in which case proof of loss or destruction shall be furnished to the satisfaction of the Company. Cb) When liability and the extent of loss or damage has been definitely fixed in accordance with these Conditions and Stipulations, the loss or damage shall be payable wJthJe 30 days thereafter. 13. SUBROGATION UPON PAYMENT OR SETTL~ENT. Ca) The Company's Rigid' of SubrogaNon. Whenever the Company shall have settled and paid a claim under this policy, all right of subrogation shall vest in the Company unaffected by any ad of the insured claimant. The Company shall be submgated to and be entitled to all rights and remedies which the insured claimant would have had against any person or property in respect to the claim hacl this policy not been issued. If requested by the Company, the insured claimant shall transfer to the Company all rights and remedies against any person or properly necessary in order to per[ed lhis righl of subrogation. The insured claimanl shall permit the Company to sue, compromise or settle in the name of the insured claimant and to use the nome of the insured claimant in any lraesaction or litigation involving these rights or remedies. If e payment on account of a claim does not fully cover the loss of the insured claimant, the Company shall be submgeted to these rights end remedies in the proportion which the Company's payment bears to the whole amount of the loss. If loss sheuld result [Tom any ad of the insured claimant, as stated above, that ad shall not void this policy, hut the Compnny, in that event, shall be required te pay only that part of any Josses insured against by lhis policy which shall exceed the amount, if eny, lost to the Company by reason of the impairment by the insured claimant of the Company's right of subrogation. Cb) The Compa~s Rights Aooinst Non-insured ObliDom. The Company's right of submgetion against non-insured obligors shall exist and shall include, without limilation, the rights of the insured to indemnities, guaranties, other policies of insurance or bonds, nolwithstanding any terms or conditions contained in those instruments which provide for subrogation rights by reason of this policy. 14. ARBITRATION Llnless prohibited by applicable law, either the Company or the insured may demand arbitraDan pursuant to the Title Insurance Arbitration Rules of the American Arbitration Association. Arbitrable maMem may include, but are net limited la, any controversy or claim belween the Company and the insured arising out of or relating ta this policy, any service of the Company in connedion with its isseence or the breach of a policy prevision or other obligation. All arbitrable matters, when the Amount of Insurance is 51,000,000 or less shall be arbitrated at the option of either the Company ar the insured. All arbitrable molters when the Amount of Insurance is in excess of Sl,0OO, OgO shall he arbitrated only when agreed to hy both the Company and the insured. Arbitration pursuant to this policy and under the Rules ia effeci on the date the demand far arbitration Js made or, at the option of the insured, the Rules in effect at Date of Pelicy shall he binding upon the parties. The award may include attorneys~ fees only if the law of the state in which the land is located permil a court to award attorneys' fees to a prevailing pa~. Judgment upon the award rendered by the Arbitrator(s) may be entered in any court having jurisdiction thereof. The law of the situs of the land shall apply to an arbitration under the Title Insurance Arbitration Rules. A copy of the Rules may be obtained from the Company upon request. 15. LIABILI'IY LIMITED TO THIS POLICY; POLICY ENTIRE CONTRACT. (a) This peJicy together with all endarsements, if any, aHached hereto by the Company is the entire policy and (entrad between the insured and the Company. In interpreting any provision of this policy, this policy shall be construed as a whole. Cb) Any claim cf loss or damage, whether or not based on negligence, and which arises out of the status of the title to the estate or interest covered hereby er by any ac'ion asserting such claim, shall he restricted to this policy. Cc) Ne amendment of or endorsement ta this policy CaR be made except by a writing endorsed hereon or attached hereto signed by either the President, a Vice President, the Secretary, an Assistant Secretary, or validating officer or authorized signatory of the Company. J6. SEVERABILITY. In the event uny provision of the policy is held invalid or unenforceable under applicable law, the policy shall be deemed nat to include that provision and all other provisions shall remain in fell force and effect. 17. NOTICES, WHERE SENT. All notices required to be given the Company and any statement iu writing required to be furnished the Company shall include the numhm of this pa[ky and shod he addressed to the Company at 300 East 42nd Street, New York New York 1001Y. STEWART TITLE® STEWART TITLE® POLICY OF TITLE INSURANCE STEWART TITLE® 300 East 42nd Street NewYork NewYork 10017 STEWART TITLE® POLICY OF TITLE INSURANCE STEWART TITLE® 300 East 42nd Street New York, New York 10017 STEWART TITLE® POLICY OF TITLE INSURANCE STEWART TITLE® 300 East 42nd Street New York, New York 10017 CONSENT I, Peter Harbes, am the managing member ofEWH, LLC. I have the consent of at least two- thirds in interest of the members of EWH Limited Liabililty Company to sell the development rights on the premises known as "Development Rights Area" on a certain map entitled, "Survey of Described Property situate Mattituck, Town of Southold, Suffolk County, N.Y. surveyed for: E.W.H. Limited Liability Company", SCTM//1000-120-03-011.12 in accordance with the Articles of Organization and Operating Agreement and to have the proceeds check from the sale issued to Peter Harbes. Dated: EWH, LLC By: Peter Harbes, Managing Member STATE OF NEW YORK ) COUNTY OF SUFFOLK ) On the-'~/{}-6- day of March, 2006, before me, the undersigned, a notary public in and for said State, personally appeared Peter Harbes personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument. TITLE NO. ST-S-6330 Dist: 1000 Section: 120.00 Block: 03.00 Lot: 011.012 Premises: 5645 Aldrich Lane, Mattituck, NY 11952 STATE OF NEW YORK ) ) SS.: COUNTY OF SUFFOLK ) Peter Harbes being of full age, being duly sworn, deposes and says: I am, Peter Harbes, the managing member of EWH, Limited Liability Company the seller of the developments rights on the above described premises. THAT I reside at 935 Laurelwood Drive, Laurel, NY 11948; THAT the Right of Way as set forth in Liber 3493 at Page 32 (copy attached) mentioned in the above referenced title report bas been extinguished for over thirty (30) years; THAT I make this affidavit to induce Stewart Title Insurance Company to issue its policy of title insurance, knowing that they rely on the truth of the statements contained herein.. Sworn to before me this day of March, 2006 · ~qotary l~ubli~ - t3 , Peter Harbes AFFIDAVIT THAT POWER OF ATTORNEY IS IN FULL FORCE AND EFFECT STATE OF NEW YORK, COUNTY OF SUFFOLK, ss. I, Peter Harbes, being duly sworn, depose and say: THAT Edward W. Harbes, Jr., having an address at 555 Sound Avenue, Mattituck, NY 11952, as principal, did, in a writing dated March 9, 2004, appoint me his true and lawful attorney-in-fact, and that attached hereto is a true copy of said power of attorney. THAT I have no actual knowledge or actual notice of the revocation or termination of the aforesaid power of attorney by death or otherwise, or knowledge of any facts indicating the same. I further represent, to the best of my knowledge after diligent search and inquiry, that: said principal is now alive; has not, at any time, revoked, terminated, suspended or repudiated the power of attorney; and the power of attorney still is in full force and effect. TItAT I make this affidavit for the purpose of inducing to accept delivery of the following instrument(s), as executed by me in my capacity of attorney- in-fact of said principal, with full knowledge that this affidavit will be relied upon in accepting the execution and delivery of said instrument(s) and in paying good and valuable consideration therefor: Dated: Subscribed and sworn to before me on March I(~ , 2006 / Notar~blic My commission expires on /V~ ) ~6~ CONSULT YOUR LAWYER BEFORE SIGNING THIS INSTRUMENT - THIS INSTRUMENT SHOULD BE USED BY LAWYERS ONLY DURABLE GENERAL POWER OF ATTORNEY revised 1/1/97 NEW YORK STATUTORY SHORT FORM THE POWERS YOU GRANT BELOW CONTINUE TO BE EFFECTIVE SHOULD YOU BECOME DISABLED OR INCOMPETENT CAUTION: This is an important document. It gives the person whom you designate (your "Agent") broad powers to handle your property during your lifetin~, which may include powers to mortgage, sell, or otherwise dispose of any real or personal property without advance notice to you or approval by you. These powers will continue to exist even after you become disabled or incompetent. These powers are explained more fully in New York General Obligations Law, Article 5, Title 15, Sections 5-1502A through 5-1503, which expressly permit the use of any other or different form of power of attorney. This doctunent does not authorize anyone to make medical or other health care decisions. You may execute a health care prow to do this. If there is anything about this form that you do not understand, you should ask a lawyer to exl~lain it to you. THIS is intended to constitute a DURABLE GENERAL POWER OF ATTORNEY pursuant to Article 5, Title 15 of the New York General Obligations Law: I, Edward W. Harbes, Jr. Residing at: 555 Sound Avenue Mattituck, NY 11952 Do Hereby Appoint: Peter Harbes Residing at: 935 Laurelwood Drive Laurel, NY 11948 (If 1 person is to be appointed agent, insert the name and address of your agent above) Do Hereby Appoint: Residing at: (If 2 or more persons are to be appointed agents by you insert their names and addresses above) ',,~,'. iiz'' Page 1 of 5 Pages my attorney(s)-in-fact TO ACT (If more than one agent is designated, CHOOSE ONE of the following two choices by putting your initials in ONE of the blank spaces to the left of your choice:) ( )Each agent may SEPA3~ATELY act. ( )Ail agents must act TOGETHER. (If neither blank space is initialed, the agents will be required to act TOGETHER) IN MY NAME, PLACE AND STEAD in any way which I myself could do, if I were personally present, with respect to the following matters as each of them is defined in Title 15 of Article 5 of the New York General Obligations Law to the extent that I am permitted by law to act through an Agent: (DIRECTIONS: Initial in the blank space to the left of your choice any one or more of the following lettered subdivisions as to which you WANT to give your agent authority. If the blank space to the left of any particular lettered subdivision is NOT initialed, NO AUTHORITY WILL BE GRANTED for matters that are included in that subdivision. Alternatively, the letter corresponding to each power you wish to grant may be written or typed on the blank line in subdivision "(Q)", and you may then put your initials in the blank space to the left of subdivision "(Q)" in order to grant each of the powers so indicated) (~) (A) Real estate transactions; (~i/~) {B) Chattel and goods transaction; (~/~) (C} Banking transactions; ~/~) (D) Business operating transactions; ~/~) (E) Insurance transactions; ~1t} (F} Claims and litigation; ~) (G) Records, reports and statements; ~} (H} Retirement benefit transactions; ~) (I) Tax matters; (J) Ail other matters; Full and unqualified authority to my attorney(s)-in- fact to delegate any or all of the foregoing powers to any person or persons whom my attorney(s)-in-fact shall select; Page 2 of 5 Pages (~/~) (L) Make transfers of interest in any companies or businesses I own, even to my attorney-in-fact, in a manner consistent with my estate plan. (f~) (M) Each of the above matters identified by the following letters: ........................... ; (Special provisions and limitations may be included in the statutory short form durable power of attorney only if they conform to the requirements of Section 5-1503 of the New York General Obligations Law.) NOTWITHSTANDING THE FOREGOING, THE ABOVE POWERS ARE LIMITED TO MATTERS INVOLVING EWH LIMITED LIABILITY COMPANY, OR ANY ENTITY(IES) SUCCEEDING TO SUCH BUSINESSES. Special Additional Provision: The powers granted under (A) through (C) above shall include the sale of a cooperative housing unit and are enlarged so that all fixtures and articles of personal property which at the time of such transaction are or which may thereafter be attached to or used in connection with the real or personal property may be included in the agreements or other instruments to be executed and delivered in connection with any transactions and which may be described in said instruments with more particularity. This Power of Attorney is not subject to question because an instrument executed hereunder fails to recite or recites only nominal consideration paid therefore and any person dealing with the subject matter of such instrument may do so as if full consideration had been expressed herein. This Durable Power of Attorney shall not be affected by my subsequent disability or incompetence. If every agent named above is unable or unwilling to serve, I appoint: residing at: (insert name and address of successor) to be my agent for all purposes hereunder. Page 3 of 5 Pages TO INDUCE ANY THIRD PARTY TO ACT HEREUNDER, I HEREBY AGREE THAT ANY THIRD PARTY RECEIVING A DULY EXECUTED COPY OR FACSIMILE OF THIS INSTRUMENT MAY ACT HEREUNDER, AND THAT REVOCATION OR TERMINATION HEREOF SHALL BE INEFFECTIVE AS TO SUCH THIRD PARTY UNLESS AND UNTIL ACTUAL NOTICE OR KNOWLEDGE OF SUCH REVOCATION OR TERMINATION SHALL HAVE BEEN RECEIVED BY SUCH THIRD PARTY, AND I FOR MYSELF AND FOR MY HEIRS, EXECUTORS, LEGAL REPRESENTATIVES AND ASSIGNS, HEREBY AGREE TO INDEMNIFY AND HOLD HARMLESS ANY SUCH THIRD PARTY FROM AND AGAINST ANY AND ALL CLAIMS THAT MAY ARISE AGAINST SUCH THIRD PARTY BY REASON OF SUCH THIRD PARTY HAVING RELIED ON THE PROVISIONS OF THIS INSTRUMENT. This Durable General Power of Attorney my be revoked by me at any time. In Witness Whereof, I have hereunto signed my name this ~/~ day of ~<~ 2004. Acknowledgement STATE OF NEW YORK) ) ss.: COUNTY OF SUFFOLK) On the ~day of /~'~ in the year 2004 before me, the undersigned, personally appeared EDWARD W. HA_RBES, JR., personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument. //~/~-~ /~ JAY R QUARTARARO Nota~ Publio, ~ate o! N~ No. O2QU~55895 Notary Public of t~-e Stat~ of New York Ou~lfled in 8uffolk Count~ My Commission Expires: q-~[~/6~ Page 4 of 5 Pages N Y S A G M K T S W A I V E R WAIVER NYS DEPARTMENT OF AGRICULTURE AND MARKETS I am the owner of 34.5 acres of active farmland and/or -0- acres of non-farmland, situated at 5645 Aldrich Lane, Laurel, in the Town of Southold, County of Suffolk, State of New York, designated as part of Suffolk County Tax Map No. 1000-120-3-11.12 and, that is proposed to be acquired by the Town of Southold in Suffolk County Agricultural District #1. Pursuant to Section 305(4)(d) of the New York State Agriculture and Markets Law, I hereby waive my right to require the Town of Southold to file with the Commissioner of Agriculture and Markets and the County Agricultural and Farmland Protection Board a Preliminary and Final Notice of Intent in accordance with paragraphs (b) and (c) of section 305(4) of the Agriculture and Markets Law. Project Sponsor TOWN OF SOUTHOLD By: Scott A. Russell, Supervisor 53095 Route 25 P.O. Box 1179 Southold, New York 11971-0959 Landowner EWH, LLC P.O. Box 1731 Mattituck, NY 11952 STATE OF NEWYORK ) COUNTY OF SUFFOLK ) )SS: On the /() day of March, 2006, before me personally appeared SCOTT A. RUSSELL, personally known to me or provided to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity as Supervisor of the TOWN OF SOUTHOLD; that he knows the seal of said municipal corporation; that the seal affixed to said instrument is such corporate seal; and that by his signature on the instrument, the individual, or the municipal corporation upon behalf of which the individual acted, executed the instrument and affixed the seal thereto by like order. STATE OF NEW YORK )SS: COUNTY OF SUFFOLK On the / 0~--day of March, 2006, before me personally appeared PETER HARBES, personally known to me or provided to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity as owner of the subject premises; and that by his signature on the instrument, the individual, or the persons upon behalf of which the individual acted, executed the instrument. Nota~ /-~'~-J/ New York State Department of Environmental Conservation Division of Lands & Forests Bureau of Real Property, 5th Floor 825 Broadway, Albany, NewYork 12233-4256 Phone: (518) 402-9442 · FAX: (518) 402-9028 Website: www.dec.state.ny.us Melissa Spiro Department of Land Preservation Town of Southold P.O. Box 1179 Southold, NY 11971-0959 April 6, 2007 Dear Ms. Spiro: We have received and filed in our office the following conservation easements: CE: Suftblk 438 Grantor: EWH, Limited Liability Company Liber: D12445 Page: 87 The conservation easements cited above have been so identified for our indexing and filing purposes. This number may be needed for the landowner to claim a conservation easement tax credit. When contacting this office about these parcels, please use the assigned identifier. Your cooperation in this matter is very much appreciated. Very truly yours, Timothy A. Reynolds Real Estate Specialist 2 Bureau of Real Property TAR:gm MELISSA A. SPIRO LAND PRESERVATION COORDINATOR melissa.spiro @ town.southold.ny.us Telephone (631) 765-5711 Facsimile (631) 765-6640 OFFICE LOCATION: Town Hall Annex 54375 State Route 25 (corner of Main Road & Youngs Avenue) Southold, New York MAILING ADDRESS: P.O. Box 1179 Southold, NY 11971-0959 DEPARTMENT OF LAND PRESERVATION TOWN OF SOUTHOLD April 2, 2007 NYSDEC Bureau of RealProperty 625 Broadway, 5~ Floor Albany, NY 12233-4256 Attention: Re: Tim Reynolds Conservation Easements Registry EWIt, LIMITED LIABILITY COMPANY to TOWN OF SOUTHOI ~D Dear Mr. Reynolds: Enclosed please find a copy of the recorded Grant of Development Rights Easexnent on agricultural property located within the Town of Southold to be registered with the New York State Department of Conservation. Details regarding this easement are as follows: GRANTOR: GRANTEE: SUFFOLK CO RECORDING DATE: LIBER: PAGE: LOCATION: EASEMENT ACREAGE: SUFFOLK CO TAX MAP #: EWH, Limited Liability Company Town of Southold April 12, 2006 D00012445 087 5645 Aldrich Lane, Laurel, NY 34.5 acres 1000-120~00-03.00-011.014 Kindly acknowledge receipt of this document by providing me with the NYS-DEC control number assigned to tlfis easement. Sincerely, // Melissa Spiro Land Preservation Coordinator euc. cc: EWH, LLC Attn: Peter Harbes - P.O. Box 1731, Mattituck, NY 11952 w/o clio. G R A N T I N F O R M A T I O N A DETACH HERE BEFORECASHING ~ [ Check Total ] PLEASE CASH WITHIN '180 DAYS *****$2,475,385. O0 [ 5~;8119G7 JUNE 0 i2006 fi~tate Of ,z~e~l.1 ~flr[t CheckNo. 70745214 DEPARTNIEN Pay to Andrew $. Eris{olI, Commis~loner,Iax & Finance BP, :[ ? MELISSA A. SPIRO LAND PRESERVATION COORDINATOR melissa.spiro @ town.southold.ny,us Telephone (631) 765-5711 Facsitnile (631) 765-6640 OFFICE LOCATION: Town Hall Annex 54375 State Route 25 (comer of Main Road & Youngs Avenue) Southold, New York MAILING ADDRESS: P.O. Box 1179 Southold, NY 11971-0959 DEPARTMENT OF LAND PRESERVATION TOWN OF SOUTHOLD FedEx 8550 2427 9830 April 20,2006 David H. Behm Farmland Protection Program Manager NYS Department of Agriculture and Markets Division of Agricultural Protection 10B Airline Drive Albany, NY 12235 Re: Town of Southold Contract No. C800606 ($1,200,000) Project: HARBES Farm SCTM #1000-120-3-p/o 11.12 Dear Mr. Behm: I am pleased to advise you that on March 10, 2006, the Town of Southold acquired the development rights on the Harbes Farm (EWH Limited Liability Company) located on Aldrich Lane in Mattituck, New York. The easement comprises 34.5 acres of the 39.35 acre farm. A 4.85 acre area was reserved from the easement. The total purchase price of $1,897,500.00 was based upon 34.5 buildable acres at $55,000/acre. I am, therefore, submitting the following documents regarding the Town of Southold's request for State payment in the amount of $1,125,385.00 under contract #C800606 due to expire on March 31, 2007, for the development rights easement purchased from: EWH Limited Liability Company (Harbes Farm d/b/a David Rose Perennials) SCTM #1000-120-3-11.14 ( f/lq/a SCTM #1000-120-3-p/o 11.12) · State of New York - Standard Voucher; · Budget report; · Form B - Budget Information; Page 2 April 19, 2006 David Behm NYS Department of Agriculture and Markets Division of Agricultural Protection Re: Town of Southold - Contract No. C800606 ($1,200,000) Harbes Farm · Development Rights Purchase and Sale Agreement dated March 6, 2006 (copy); · Title Insurance Policy No. O-8831-352630, title search #ST-S-6330, in the amount of $1,897,500.00 issued 3/10/06 (copy); · Letter from Lisa Clare Kombrink, Special Counsel to the Town of Southold, dated March 7, 2006, stating her professional legal opinion concerning the Right of Way located on the subject property. Additional information concerrting the right of way follows the title report included in the Baseline Documentation; · Recorded Grant of Development Rights Easement dated 3/10/06 (certified copy); · Recording documents - TP-584, RP-5217 and Peconic Bay Region CPF forms (copies); · Monitoring Plan; · NYS Dept. of Agriculture and Markets Waiver executed 3/10/06 (copy) · Amended survey dated March 22, 2006 (included at back of Baseline Documentation); and · Baseline Documentation (duplicate original) Two copies of the appraisal were previously forwarded to you on February 7, 2006. I trust you will find any additional information you require within the pages of the Baseline Documentation. If not, or if you have any questions regarding this project, please call my office. Upon your review and approval, kindly submit the voucher for payment. Thank you. Sincerely, Melissa Spiro Land Preservation Coordinator /md encs. cc: John Cushman, Town Comptroller w/copies of voucher & budget info Originating Agency STATE oF STANDARD VOUCHER NEW. YORK Orig, Agency Code (Y/N) (MM) (DB) (YY) DSC Use Only Payee ID Additional Zip Code Route 116001939 47037900(~ 11971-0959 Payee Name (Limit to 30 spaces) Town of Southold Payee Name (Limit to 30 spaces) Address (Limit to g0 spaces) 53095 Route 25 Address (Limit to 30 spaces) P.O. Box 1179 City (Limit to 20 spaces) Southold Orde¢ No and Dine (Limil to 2 spaces) -) Zip Code 11971-0959 Description of Material/Sewice If items are too ~umerc~s lo be incorporated into the block below, use Form AC 93 and carry total Ionvard. Liability Date Payee Amount IRS Code IRS Amount Slat. Type Statistic 5_.J Ref/Inv. NO. (Limit to 20 spaces) Harbes Farm (MM} (DD) Indicator-Deph Ref/Inv. Date (MM) (OD) {YY) Quantity Voucher No. P-Contract C800606 (YY) MIR Date (MM) (OD) (YY Indicator-Statewide Agricultural Land Development Rights HARBES Farm (EWH, LLC) 34.5 acres - development rights easement Contract No. C800606 - $1,200,000.00 75% reimbursement = $1,125,385 7.j Payee Certification: I ceddy that the above bill is j rue and correct; that no part thereof has been paid except as stated and that ~1,the balance is actually~~ Southold Town 3ervisordUe owing, and taxes from which the State is exempt are excluded 4/2.0/06 Town of Southold Date Name ol Company FOR AGENCY USE ONLY Merchandise Received Date Page No I cenl y ha h s voucher is correc~ and just, and payment Ts approved, and the goods or services rendered or fur n~shed are for use in the performance ol the official lunclions and duties of this agency $ 1,125,38.~ 00 $ 1,125,385.00 $ 1,125,385.00 STATE COMPTROLLER'S PRE-AUDIT Certified For Payment of Verified Net Amount Authorized Signalure Audited SpedalApproval (as Requi~ed) By Date Cost Center Code Cost Center Unit Object Expenditure By Liquidation Ac-cum Amount Orig Agency PO/Conlract DSC [] Check il Continustion Iorm is adached Budget Report - New York State State of Ag & Markets Contract No. C800606 DAVID ROSE PERENNIALS - Peter Harbes Farm (EWH Limited Liability Company) Payee Check No. Description Peter Harbes 85246 Given Associates, LLC 83625 Stanley J. Isaksen, Jr. 85146 Nelson, Pope & Voorhis to be paid Stewart Title Ins Co 85247 Stewart Title Ins Co 85247 Livia Cooper 85245 Amount development rights $1,897,500 appraisal 1,900 survey 950 environmental report 1,300 title insurance 7,728 recording fees 635 closer attendance fee 100 Total Budget for Project $1,910,113 Harbes Farm Proiect Actual Cost of Development Rights (34.5 acres @ $55,000/acre) $1,897,500 Administrative Costs 12,613 Total Project Costs $1,910,113 Project Budget Farm Name: Peter Harbes Farm: 34.5 acres PROJECT COSTS Estimated Value of Conservation Easement Municipality: Town of Southold $1,897,500 I(= $55/acre) Administrative Costs Title Insurance Survey(s) Appraisal Outside Legal Review Recording Fees Stewardship Fee Other Subtotal $5,000 $950 $1,900 $0 $635 $7,5OO $1,4oo! $17 Identify: Administrative Costs (in-kind) Staff Time Travel/office expense Other Subtotal Total Project Costs $1,000 $3,0~00 identify: $4,000 $t,918,885 I FUNDING SOURCES Local Match Funding . Municipal Funds Landowner Donation In-Kind Other (foundation, federal, etc.) Subtotal % of total project costs $789,500 $4,O0O $793,500 41.35% $1,125,385 58.65% Identify: State Funding State Funding % of total project costs above State cap at 32,000 = Ad. Costs = Ad. Costs (in-kind) = Total = 1,104,000 17,385 4000 1,125,385 ESA =$1300 and title closer = $100 LISA CLARE KOMBRINK, ESQ., P.C. 23s Hampton Road Southampton NY 11968 tel 631-287-3939 fax 631-287-3790 March 7, 2006 David Behm Program Manager New York State Department of Agriculture and Markets 103 Airline Drive Albany, New York 12235 Re: EWH, LLC to Town of Southold - - (Harbes Farm) SCTM# 1000-120-3-11.12 Sale/Purchase of Development Rights - - Contract #C800606 $1,200,000.00 Grant Dear Mr. Behm: ! am Special Counsel to the Town of Southold (the "Town") for matters involving the purchase of development rights on agricultural lands. ! represent the Town in the above transaction. T have reviewed Title Report No. ST-S-6330 from Stewart Title Insurance Company listing the Right of Way as set forth in Liber 3493 at page 32 in the Suffolk County Clerk's Office and as shown on the survey prepared by Stanley _1. !saksen, _ir., Land Surveyor dated March 2, 2006. in my opinion, the Right of Way as described in the above document does not interfere with the agricultural and farmland protection purposes for which the development rights will be acquired. This opinion is based solely on my review of the above documents and the Grant of Development Rights Easement to be executed by the parties at closing. Please let me know if you require anything further. Thank you for your anticipated professional courtesy and cooperation. Ver~ CC: tv eliss~ Spiro EWH, LLC (Peter Harbes) to TOWN OF SOUTHOLD SCTM #1000-120-3-p/o 11.12 Development Rights Easement - 34.5 acres 5645 Aldrich Lane, Mattituck Closing held on Friday, March 10, 2006 from left to right: Scott A, Russell, Southold Town Supervisor Peter Harbes, Property Owner Ellen Harbes, his wife MELISSA A. SPIRO LAND PRESERVATION COORDINATOR melissa.spiro @ town.southold.ny.us Telephone (631 ) 765-5711 Facsimile (631 ) 765-6640 OFFICE LOCATION: Town Hall Annex 54375 State Route 25 (comer of Main Road & Youngs Avenue) Southold, New York MAILING ADDRESS: P.O. Box 1179 Southold, NY 11971-0959 DEPARTMENT OF LAND PRESERVATION TOWN OF SOUTHOLD To.' From: Date: Re: Supervisor Russell Town Board Town Clerk Land Preservation Committee Town Attorney Planning Board Suffolk County Division of Real Estate Tax Assessors Building Department Data Processing Town Comptroller Stewardship Manager Peconic Land Trust, Inc. The Nature Conservancy Melissa Spiro, Land Preservation Coordinator March 10, 2006 EWH, LLC (Peter Harbes) to TOWN OF SOUTHOLD plo SCTM #'1000-120.3-11.t 2 Development Rights Easement Please be advised that the Town has acquired a development rights easement on the agricultural farmland listed below. If you would like additional information regarding the purchase, please feel free to contact me. LOCATION: PROPERTY OWNER: PURCHASE DATE: PURCHASE PRICE: EASEMENT ACREAGE: FUNDING: MISCELLANEOUS: 5645 Aldrich Lane, Mattituck EWH, LLC (Peter Harbes) Friday, March 10, 2006 $1,697,500.00 (based on $55,000/buildable acre) 34.5 acres on 39.35 acre property CPF 2% Land Bank and eligible for NYS Ag & Markets grant funds This property is listed on the Town's Community Preservation Project Plan. The current use is a perennial nursery known as David Rose Perennials. The landowner reserved 4.85 acres from the easement. The landowner placed a C&R on the Reserve Area, timiting future residential use to farm-related housing and prohibiting subdivision of the Reserve Area from the farm area. P R O P E R T Y R E C O R D S File View Toolber Help 120.-3-11_12~ 473889, SouthoO C,ty... Matbtuck. NY Z~p..11952- Schlager ~ Exemption · Toa 1 Te- n Code Amount Year Pet ; 13.600 O 0 ~20 AG Di" Special Di=t~ict Total: 4 V~u~/ ~ Impfo~=ment Tot~l: 0 ~ : Code Units Pcl Type MoveTax ~ rype N~me Dm1 D m2 SQFT Y 8u FD030 Hattituck FD .00 .00 .oo-- PKO71 ~at6tuck Pa~ .ilo .00 O0 Print~ the ~creen ~.~.Sl:art{ ~,r, box-,~licro,sof~Ou~look {[ORPSV.raion4-tSnap... 2 0 0 6 P H O T O S ~ m mm mm m mm mm mm mm View ~roperty View north , boundary February 2006 photos February 2006 photos m )pen area greenhouses February 2006 photos 152320' DEVELOPMENT RIGHTS AREA FOUND PHOTO PLACEMENT MAP EWH, LLC (Peter Harbes) to TOWN OF SOUTHOLD Development Rights Easement - 34.5 acres SCTM #1000-120-3-p/o 11.12 5645 Aldrich Lane, Mattituck, NY Closing held on March 10, 2006 25 photos taken on March 9, 2006 1. From Aldrich Lane, directly across from Harvest Lane, facing westerly. 2. From entrance to access drive on Aldrich Lane, facing westerly. From first curve towards south in access drive, facing westerly, 4. From first curve towards south in houses and ag structure building. , facing southerly towards hoop 5. From first curve towards south in access drive, facing southeasterly. 6. From second curve towards west in access drive, facing northwesterly. 7. From second curve towards west in access drive, facing westerly towards hoop houses. 8. From second curve towards west in access drive, facing southwesterly towards ag structure (office), parking lot and view of hoop houses on either side of building. 9. From second curve towards west in access drive, facing south showing poly- greenhouses. lO. From second curve towards west in access drive, facing southeasterly towards southeast corner of easement. 11. From second curve towards west in access drive, facing southeasterly along eastern boundary line. From southeast quadrant of eaSement, facing northwesterly along eastern boundary, View of hoop houses and ag structure (office) building 13. From southeast quadrant of easement, facing northwesterly. 14. From southeast quadrant of easement, facing west towards wooded area. 15. From southeast quadrant of easement, facing southwesterly towards back wooded area. 16. From southeast quadrant of easement, facing south towards southeast corner of easement. 17. From a point at intersection at woods line and reserved area, facing easterly towards back of ag structure (office) building. 18, From northerly towards hoop houses. line with, boundary line, facing 19. From a point at intersection of woods line with western boundary line, facing northerly along western boundary line. 20. From a point at intersection of woods line with western boundary line, facing southerly along western boundary line. 21. From a point at intersection of woods line with western boundary line, facing easterly towards wooded area. 22. From a point at intersection of inside corner of connecting reserved areas, facing southerly. 23. From a point at intersection of inside corner of connecting reserved areas facing southeasterly over development rights easement. 24. From a point at intersection of inside cOrner of connecting reserved areas, facing easterly towards poly-greenhouses. 25. From a point at intersection of inside corner of connecting reserved areas, facing northerly towards back of ag structure (office) and poly-greenhouses. A E R I A L S I I I I I ! I I 1994 Aerial Photograph I I I I I i I I I I i I I ! I I i ! I I I 1980 Aerial PhOtOgraph I I I I I I I I 1976 Aerial Photograph I i I I I I ! I ! I I 1 ! 1969 Aerial PhOf°graph I I I I ! I I I I I I I I I I I 1938 Aerial PhOtograph S U R V E Y S 71'51'$0"W 1523,20' RESERVED AREA 71952 SURVEY OF D£SCRIBED PROP£RTY MATFITUCK, TOWN OF SOUTHOLD SUFFOLK COUNTY, N.Y. SURVEYED FOR; E. W. H. LIMITED L/ABILITY COMPANY ZONE A C FINAL SURVEY WOODS LINE LJ 0 RESERVED AREA DEVELOPMENT RIGHTS AREA 25!-- FOUND CONC S 159 75'04'00"~~ Eou~a CONC MOM 366.18' SEI FOUND CONC, CONC, C/o TONE MONUMENT, RESET 02053 3 ~ ~ ~bl II 2005 APR - ~ ¸'1 SURVEYED BY STANLEY J, ISAKSEN, JR, P,O BO; 294 NEW SL NY 1¢956 651-7, NYS Lic 9275 ;C1254RF-1